STATE OF KARNATAKA vs MOHAMMED APTHAB SHALI @ SHANU

Court
Karnataka High Court

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 14 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO.992 OF 2017 (A)
BETWEEN:
1. STATE OF KARNATAKA
BY MANGALURU SOUTH POLICE STATION,
MANGALURU DISTRICT
REPTD. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING,
BANGALORE-01.
…APPELLANT
(BY SRI. K. NAGESHWARAPPA, HCGP)
AND:
1. MOHAMMED APTHAB SHALI @ SHANU
S/O MOHAMMED SHALI
AGED 29 YEARS
R/AT AYISHA APARTMENT, 3RD FLOOR,
MALABAR FIRST CROSS, FALNIR
MANGALURU-575001.
Digitally signed by
LAKSHMINARAYAN N
Location: High Court
of Karnataka
2. ASHRAF
S/O MOHAMMED
AGED 39 YEARS
R/AT GUDDE HOUSE,
UDYAVARA, MANJESHWARA POST,
KASARGOD DISTRICT,
KERALA STATE-670121.
…RESPONDENTS
(V/O DATED: 05.10.2026 SRI. N. SRINIVAS, AMICUS CURIAE
FOR R1 & R2.)

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CRL.A. FILED U/S.378(1) AND (3) CR.P.C BY THE S.P.P.
FOR THE APPELLANT PRAYING THAT THIS HON'BLE COURT MAY
BE PLEASED TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGEMENT AND ORDER DATED 14.11.2016 PASSED BY THE
PRINCIPAL DISTRICT AND SESSIONS JUDGE, MANGALORE IN
SPL.C.NO.12/2013, ACQUITTING THE
RESPONDENTS./ACCUSED FOR THE OFFENCE P/U/S 8(c) R/W
20(b)(ii)(B),21,22 OF NARCOTIC DRUGS AND PSYCHOTROPHIC
SUBSTANCES ACT AND SEC.3,25,27 OF INDIAN ARMS ACT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE G BASAVARAJA
ORAL JUDGMENT
State has preferred this appeal against the Judgment of
acquittal dated 14.11.2016 passed in Special Case No.12 of
2013 by the Principal Sessions Judge/Special Judge, Dakshina
Kannada, Mangalore. short “the trial Court”).
2. The Police Inspector of City Crime Branch, submitted
Charge sheet against accused for offences punishable under
sections 8(c), 20(B), 21, 22 of Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short “NDPS Act”) and Sections 3,
25, 27(3) of Indian Arms Act.
3. It is alleged by the prosecution that on 13.01.2013 at
about 8:15 am, CW1-Dr H.N. Venkatesa Prasanna, Police

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Inspector of City Crime Branch, received credible information
that two persons are selling brown-sugar and Ganja on a Honda
Activa scooter bearing Regn.No.KA-19/E-1716 in front of
Cream Fresh Ice Cream Parlour, Fortune Complex, Sturuck
Road, Mangaluru. Accordingly, after obtaining permission from
Police Commissioner, he had been to the spot along with staff
and apprehended the accused who were in possession of brown
sugar and Ganja. Thereafter, he secured executive Magistrate
and got examined the accused in his presence. They seized 15
grams of brown sugar, and 350 grams of Ganja and a 22-
country made revolver, 4 live bullets and Honda Activa scooter
from accused No.1. They have also seized 7.270 grams of
brown sugar, and 300 grams of Ganja from accused No.2.
Upon enquiry, they told that they have purchased brown sugar
and Ganja from one Asif of Manjeshwara, Kerala. The same
were seized under mahazar in the presence of panch witnesses.
Accused were arrested and produced before the learned
Magistrate. They were remanded to judicial custody and
thereafter, were enlarged on bail. After filing charge-sheet,
case was registered as SC No.12 of 2013. On hearing, the trial

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Court framed charges against the accused for the offences
alleged and accused and the same read over to the explained
to the accused in the language known to them. Accused
pleaded not guilty and claimed to be tried. To prove the guilt
of the accused, in all, 14 witnesses were examined as PW1 to
14 marked 14 documents as Exhibits P1 to P14 and 15 material
objects were marked as MOs1 to 15. On closure of prosecution
side evidence, statement of the accused under Section 313 of
Cr.PC was recorded. Accused totally denied the incriminating
evidences appearing against them, however, they did not
choose to lead any defence evidence on their behalf. Having
heard the arguments on both sides, the trial Court acquitted
the accused. Being aggrieved by the Judgment of acquittal,
state is before the Court in this appeal.
4. Sri K Nageshwarappa, learned Counsel appearing for
the appellant-State would submit that the impugned Judgment
of acquittal passed by the Court below is contrary to law and
facts of the case and hence the same is liable to be set aside.
He would submit that the trial Court failed in appreciating the
evidence of PW1, who is an independent mahazar witness, who

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has clearly supported the prosecution case. But the reason
assigned by the learned judge for rejection of his evidence are
not just and proper. He would submit that the trial Court has
failed to appreciate the evidence of PW2, 8 and 11. The
prosecution has established its case with the evidence of PW9
and FSL expert. The trial Court has not properly appreciated
the evidence of these material witnesses and proceeded to
acquit the accused which is not sustainable. I would submit that
the trial Court failed to appreciate that PW8 is a gazetted
officer. Hence, the compliance of Section 42 of the Act is not at
all necessary. The trial Court has not properly appreciated the
evidence of PW9-scientific officer, who has examined the seized
drugs and gave a report which fully corroborates with the
evidence of prosecution witnesses. Hence, there was no
occasion for the trial Court to grant and order of acquittal.
Accused have not disputed the fact and they are not offered
any proper explanation for seizure of properties from their
possession. On all these grounds, it is sought to allow the
appeal.

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5. As against this, Sri N. Srinivasa, learned Amicus
Curiae, appearing for the accused, would submit that the trial
Court has properly appreciated evidence on record in
accordance with law and facts and absolutely there are no
grounds to interfere with the impugned judgment of acquittal.
He has also urged as to the scope of interference of Appellate
Court, in the cases arising out of Judgment of acquittal. In
support of his submissions, he has relied on the following
decisions of the Hon’ble Supreme Court:
i. CONSTABLE 907 SURENDRA SINGH AND
ANOTHER v. STATE OF UTTARAKHAND -
(2025)5 SCC 433;
ii. BABU SAHEBGOUDA RUDRAGOUDAR AND
OTHERS v. STATE OF KARNATAKA - (2024)8
SCC 149;
iii. CHANDRAPPA v. STATE OF KARNATAKA -
(2007)4 SCC 415; and
iv. H.D. SUNDARA v. STATE OF KARNATAKA -
(2023)9 SCC 581.
6. Having heard on both sides, the following points would
arise for consideration:

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1. Whether the State has made out a ground to
interfere with the impugned judgment of
acquittal?
2. What order?
7. My answer to the above points are:
Point No.1: in the negative;
Point No.2: as per final order
Regarding Point No.1:
8. I have given my anxious consideration to the
submissions advanced by the learned HCGP and Sri. N.
Srinivas, learned Amicus Curiae and examined the materials
placed for this Court. To prove the guilt of the accused, the
prosecution has examined 14 witnesses as PWs1 to 14, marked
14 documents as Exhibits P1 to P14 and 15 material objects as
MOs1 to 15.
9. Out of 14 witnesses examined by the prosecution,
PW4, PW5, PW6 and PW7 have not supported the case of the
prosecution. PW1-Anup Kanchan and PW2, Shri Shashidhara

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Shetty, have deposed as to the raid conducted by them and
other official witnesses have deposed as to the investigation
conducted by them.
10. On careful examination of the entire evidence on
record, the trial Court, at paragraph 23 to 41, has observed as
under:
" 23. This evidence of PW­11 clearly indicates that he has not
given an opportunity to the accused by issuing notice and there is no
compliance of Section 50 of the Narcotic Drugs and Psychotropic
Substances Act, 1985. Even though, he said that he issued written notice
to the Tahsildar through PSI Shaymasundar and Tahsildar issued notice
before search of a person of the accused. This part of evidence is
contrary to the evidence of PW­8. If really PW­11 issued notice to the
Tahsildar and Tahsildar issued notice to the accused about his intention
to search the person of the accused, the non­ production of these
material documents go against the prosecution.
24. As indicated in the Supreme Court decisions relied by the
learned counsel for the accused, there is no compliance of Sections 42
and 50 of Narcotic Drugs and Psychotropic Substances Act, 1985. It is
admitted fact that the scooter find in Ex.P.2 ­ photo is a private vehicle.
So far as search of a bag kept in the two wheeler is concerned, Section
42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 was
supposed to be complied, but Section 42 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 is not complied. Moreover, PW­11
has not produced any documents to show that he has sent written
report to his immediate Superior. Under such circumstances, the case of
the prosecution is doubtful.
25. PW­8 clearly admits that no notice was issued to him on the
spot. But such written notice deposed by PW­11 does not find the light of
the day. Therefore, it is hard to believe the evidence of PW­8 and PW­11.

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26. According to PW­9 (Smt. Vani N.), she has examined a
packets submitted by the Police through PC 819 Gangadhara M.
According to PW­9, packet A­3 contains 20 packets brown sugar, A­4
contains 350 grams ganja, A­5 contains 10 packets brown sugar and A­6
contains 300 grams ganja. In this case, they were concerned about A.3
to A.6 packets only. According to her and her report ­ Ex.P.8, she noticed
presence of ganja in A­4 and A­6 packets and heroin i.e., Diacetyl
Morphine in A.3 and A.5. So far as her evidence with regard to packets
A.1 and A.2 and Ex.P.9 concerned are nothing to do with the case
against accused Nos.1 and 2. She admits that she has not examined all
the 20 packets mentioned in M.O.1. She said that she has taken small
quantity from all the 20 packets for examination purpose.
27. I carefully perused Ex.P.8. Ex.P.8 does not indicate that PW­9
took small quantity from all the 20 packets and 10 packets for
examination purpose. Even if her evidence is taken into consideration,
but there is no compliance of Sections 42 and 50 of the Narcotic Drugs
and Psychotropic Substances Act, 1985.
28. According to PW­10 (C.N. Diwakara), after taking the file for
further investigation from CW­26, he has recorded statement of CW­2 to
CW­9 and got produced accused Nos.1 and 2 before this Court. The
production of accused Nos.1 and 2 on 14.1.2013 in the home office is
proved from the order sheet and they were remanded to judicial
custody. He further said that he has recorded statement of CW­10, CW­
11 on 19.1.2013 as well as statement of CW­13, CW­14 and CW­ 15 on
20.1.2013. According to him, he had sent seized ganja and brown sugar
through CW­22 to the office of Forensic Science Laboratory, Bengaluru
on 27.2.2013 and on 5.4.2013 he has received Ex.P.8 ­ Forensic Science
Laboratory Report. Thereafter, he has filed charge sheet against the
accused persons.
29. He admits in the cross­examination that even though he
visited the incident spot, he has not enquired locality people and he
came to know that there are shops near the incident spot. It is the
definite case of the prosecution that the Police Inspector apprehended
these accused on 13.1.2013 at 10­00 a.m. and Ex.P.1 mahazar was
drawn in between 10­00 to 12­00 noon. But no effort has been made by
the investigating agency to obtain signatures of the locality people to

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Ex.P.1 alleged seizure mahazar. Even though, evidence of PW­10 is taken
into consideration, his evidence itself does not help the prosecution to
prove the guilt of the accused.
30. The prosecution relies on its star witness PW­11 (Dr. H.N.
Venkatesha Prasanna). According to PW­11, on 13.1.2013 at 8­15 a.m.,
he received a credible information about two persons selling brown
sugar and ganja in Honda Activa motor cycle bearing Reg. No.KA­19­EE­
1716 and he orally informed to the Police Commissioner about this fact.
According to him, he proceeded to the incident spot, apprehended these
accused Nos.1 and 2 with motor cycle and later on he called the
Executive Magistrate as well as he got searched the person of the
accused Nos.1 and 2 in the presence of Executive Magistrate ­ PW­8. But
he nowhere said that he intimated accused Nos.1 and 2 in writing about
their right to search their person either in the presence of Gazette Officer
or in the presence of Executive Magistrate. In the absence of such notice
to the accused as contemplated under Section 50 of Narcotic Drugs and
Psychotropic Substances Act, 1985, the counsel for the accused rightly
argues that the accused Nos.1 and 2 have deprived of valuable right
available under Section 50 of the Narcotic Drugs and Psychotropic
Substances Act, 1985. Even though, person of the accused is searched in
a public place. But the alleged ganja is seized from the private vehicle
bearing Reg. No.KA­19­EE­1716. Therefore, seizure of ganja from the so
called bag of the accused from the two wheeler falls within the purview
of Section 42 of Narcotic Drugs and Psychotropic Substances Act, 1985.
According to the prosecution, ganja is seized from conveyance i.e., two
wheeler which is not a public conveyance. I failed to understand why
PW­11 has not reduced the information in writing, why he has not sent
written information within 72 hours to his immediate official superior.
According to PW­11, he orally informed the Police Commissioner.
According to PW­11, he was Police Inspector of C.C.B. on 13.1.2013. The
Deputy Commissioner of Police is the immediate superior of PW­11. He
has not informed his immediate official superior ­ Deputy Commissioner
of Police about receipt of information and his intention to proceed
towards the alleged incident spot. The so called information furnished by
PW­11 to Commissioner of Police does not amount to compliance of
Section 42 of Narcotic Drugs and Psychotropic Substances Act, 1985. The
Police Commissioner cannot be construed as immediate official superior
of PW­11. Even though, PW­11 deposed about seizure of M.O.s from the

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possession of accused Nos.1 and 2 under Ex.P.1 ­ mahazar. But there is
no compliance of Sections 42 and 50 of Narcotic Drugs and Psychotropic
Substances Act, 1985.
31. PW­11 admits in the cross­examination that he entered the
information in station house dairy. He has not mentioned these fact in
his report i.e., Ex.P.11. He further admits that before proceeding to the
incident spot he has not informed his superiors in writing. It is not the
evidence of PW­11 that within 72 hours after receipt of information, he
had sent a report in writing to his immediate official superior i.e., Deputy
Commissioner of Police. It is not the evidence of PW­11 that at that time,
the Commissioner of Police was his immediate official superior. There is
no compliance of Sections 42 and 50 of Narcotic Drugs and Psychotropic
Substances Act, 1985. His evidence in para No.15 goes against the say of
evidence of PW­8. So called written notice issued to PW­8 and accused
are not produced before the Court. He also admits that he has not
mentioned in his report that Tahsildar and his staff search the person of
accused. Even though, he denied that the accused No.1 was
apprehended in his house on 11.1.2013 and accused No.2 was
apprehended on 12.1.2013. Even for the sake of arguments PW­11 has
not apprehended accused Nos.1 and 2 on 11.1.2013 and 12.1.2013
respectively. But there is no compliance of Sections 42 and 50 of Narcotic
Drugs and Psychotropic Substances Act, 1985, so far as Ex.P.1 seizure
mahazar is concerned.
32. It is noted in the preceding paragraphs that the presence of
PW­2 at the time of seizure mahazar itself is doubtful. PW­1 is the stock
witness of the Police, who helped the Police for creation of Ex.P.1.
Therefore, it is hard to believe the evidence of PW­11.
33. According to PW­12 (Poovappa H.M.), on 13.1.2013 PW­11
produced Ex.P.11 ­ report, M.O.1 to M.O.13 as well as other articles and
two accused persons, then he registered a case at Crime No.14/2013 and
submitted Ex.P.12 ­ First Information Report to the Court. According to
him, PW­11 had brought written report while coming to the Police
Station. Ex.P.11 is the typed written report. Ex.P.11 nowhere deposed
that in which place he got typed Ex.P.11. According to PW­12, he had
sent brown sugar, ganja, revolver and cartridges to Forensic Science
Laboratory, Madivala, Bengaluru and he got produced accused with

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remand application. Even his evidence is taken into consideration, but
Ex.P.1 is not proved and there is no compliance of Sections 42 and 50 of
Narcotic Drugs and Psychotropic Substances Act, 1985.
34. According to PW­13 (B.C. Ravindra), he examined cartridges,
revolver and issued Ex.P.13 ­ report. According to him, M.O.3 pistol can
be used after repair. He admits that this pistol is not in working
condition. Even presuming for the sake of arguments that he examined
M.O.3 and M.O.4 one revolver, 4 bullets. But seizure of these articles
from the possession of accused more particularly accused No.1 itself is
doubtful. Even evidence of PW­12 and PW­13 are taken into
consideration, this itself is not sufficient to convict the accused for
offence under the provisions of Arms Act, as seizure of these articles is
not proved.
35. According to PW­14 (K.A. Dayananda), he gave a permission
as per Ex.P.14 to file a charge sheet against the accused. He admits that
at the time of giving report, FSL Report was not produced before him.
But earlier FSL Report was produced before him. He does not know
whether pistol was working condition or not at time of issuing Ex.P.14.
Nothing is brought out from his mouth to disbelieve his evidence. When
seizure of M.O.s i.e., ganja, brown sugar, pistol, live bullets and other
articles is not proved by the prosecution. The evidence of PW­14 itself is
not sufficient to convict the accused for the offence punishable under the
provisions of Indian Arms Act.
36. Accused Nos.1 and 2 have charge sheeted for the offence
punishable under Sections 8(c) read with Section 20(b), 21, 22 of
Narcotic Drugs and Psychotropic Substances Act, 1985 and these
accused are also charge sheeted for the offence punishable under
Sections 3, 25, 27 of Indian Arms Act. The seizure is not proved and there
is no compliance of Sections 42 and 50 of Narcotic Drugs and
Psychotropic Substances Act, 1985. The prosecution fails to prove the
guilt of the accused for the offence punishable under the provisions of
Narcotic Drugs and Psychotropic Substances Act, 1985.
37. Section 3 of the Arms Act speaks about licence for acquisition
and possession of fire­arms and ammunitions is necessary. Section 7(a)
of the Act deals with no person shall acquire, have in his possession or
carry prohibited arms or prohibited ammunitions. As per Section 25(1­

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B)(a) whoever acquires, has in his possession or carries any firearm or
ammunition in contravention of Section 3 shall be punishable with
imprisonment for a term which shall not be less than one year, but which
may extend to 3 years and shall also be liable fine. The proviso also
contemplates that the Court may for any adequate and special reasons
to be recorded in the judgment impose a sentence of imprisonment for a
term of less than one year.
38. Even though charge sheet is filed against Section 27(c) of
Indian Arms Act. But the ingredients of Sentence 27 of the Act are not
proved. It is necessary to refer Section 27 of the Arms Act, which reads
thus,
“27. Punishment for using arms, etc. ­ (1) Whoever uses
any arms or ammunition in contravention of section 5 shall
be punishable with imprisonment for a term which shall
not be less than three years but which may extend to seven
years and shall also be liable to fine.
(2) Whoever uses any prohibited arms or prohibited
ammunition in contravention of section 7 shall be
punishable with imprisonment for a term which shall not
be less than seven years but which may extend to
imprisonment for life and shall also be liable to fine.
(3) Whoever uses any prohibited arms or prohibited
ammunition or does any act in contravention of section 7
and such use or act results in the death of any other
person, shall be punishable with death.”
39. In order to attract Sentence 27 of Indian Arms Act, person
uses any arms or ammunition in contravention of section 5 shall be
punishable with imprisonment for a term which shall not be less than
three years and in contravention of section 7 shall be punishable with
imprisonment and also liable to fine. But it is not the case of the
prosecution that the accused No.1 and 2 more particularly accused No.1
uses M.O.3 and M.O.4. Therefore, ingredients of Section 27 of Indian
Arms Act are not proved.
40. Further Section 27 of Indian Arms Act would come into
picture, when person uses arms and ammunition in contravention of
Sections 5 and 7 of Indian Arms Act, is liable for punishment. But there is

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no records and evidence to show that accused Nos.1 and 2 more
particularly accused No.1 uses M.O.3 and M.O.4. Unless there is
evidence about accused No.1 used M.O.3 and M.O.4 Section 27 of Indian
Arms Act does not come into picture.
41. When Ex.P.1 ­ seizure mahazar is not proved beyond all
reasonable doubt, the accused Nos.1 and 2 are not liable for conviction
under the provisions of Indian Arms Act, more particularly under Sections
3, 25 and 27 of Arms Act. The prosecution fails to prove the guilt of the
accused Nos.1 and 2 beyond all reasonable doubt. Accordingly, I answer
Point Nos.1 and 2 in the Negative."
11. The trial Court has clearly held that the investigating
officer has failed to comply with the mandatory provisions of
Sections 42 and 50 of NDPS Act, 1985.
12. As regards to offence punishable under Section,
27(c) of Indian Arms Act, is concerned, the trial Court, at
paragraphs 39 to 41, has observed as under:
" 39. In order to attract Sentence 27 of Indian Arms Act, person
uses any arms or ammunition in contravention of section 5 shall be
punishable with imprisonment for a term which shall not be less than
three years and in contravention of section 7 shall be punishable with
imprisonment and also liable to fine. But it is not the case of the
prosecution that the accused No.1 and 2 more particularly accused No.1
uses M.O.3 and M.O.4. Therefore, ingredients of Section 27 of Indian
Arms Act are not proved.
40. Further Section 27 of Indian Arms Act would come into
picture, when person uses arms and ammunition in contravention of
Sections 5 and 7 of Indian Arms Act, is liable for punishment. But there is
no records and evidence to show that accused Nos.1 and 2 more
particularly accused No.1 uses M.O.3 and M.O.4. Unless there is

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evidence about accused No.1 used M.O.3 and M.O.4 Section 27 of Indian
Arms Act does not come into picture.
41. When Ex.P.1 ­ seizure mahazar is not proved beyond all
reasonable doubt, the accused Nos.1 and 2 are not liable for conviction
under the provisions of Indian Arms Act, more particularly under Sections
3, 25 and 27 of Arms Act. The prosecution fails to prove the guilt of the
accused Nos.1 and 2 beyond all reasonable doubt. Accordingly, I answer
Point Nos.1 and 2 in the Negative."
13. On re-appreciation of the entire evidence on record, I
do not find any legal or factual error in the impugned Judgment
of acquittal. Considering the facts and circumstances of the
case and also considering the judgments relied upon by the
learned Amicus Curiae, I answer Point No.1 in the negative.
Regarding Point No.2:
14. For the discussion and reasons afore, I proceed to
pass the following:
O R D E R
i. Appeal is dismissed.
ii. The services rendered by Sri N Srinivas, learned
Amicus Curaie, in disposing of this case, is
placed on record.

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iii. Registry to pay an amount of Rs.10,000/- to
Amicus Curiae Sri N. Srinivas.
Sd/-
(G BASAVARAJA)
JUDGE
LNN
List No.: 1 Sl No.: 76