1
Dr. GRR, J
crla_573_2013
THE HON'BLE DR. JUSTICE G. RADHA RANI
CRIMINAL APPEAL No. 573 of 2013
JUDGMENT:
This Criminal Appeal is filed by the appellant-accused aggrieved by the judgment passed by the Special Sessions Judge for Trial of NDPS Cases (I Additional Sessions Judge), Warangal on 05.07.2013 in NDPS Sessions Case No.242 of 2006 convicting the petitioner under Section 8(c) read with Section 20 of NDPS Act and sentencing the appellant to rigorous imprisonment for a period of three (03) years and to pay a fine of Rs.10,000/- in default of payment of fine to suffer simple imprisonment for a period of one month.
2. The case of the prosecution in brief was that on 06.04.2006, while the SI of Police of PS Chennaraopet along with his staff was conducting vehicle checking on Narsampet-Nekkonda Main Road, at Thimmarainpad crossroads, at about 8:00 AM, found the accused coming on a scooter bearing No.AP36-4191. On suspicion, the complainant stopped the scooter and on checking the vehicle, found a bag containing dry ganja. Then, he immediately informed the same to his superior officers as well as the Executive Magistrate/Tahsildar, Chennaraopet, secured the presence of two (02) mediators and in the presence of the Executive Magistrate and mediators enquired with the accused, the accused confessed that he purchased the contraband dry ganja at Gorikothapally 2 Dr. GRR, J crla_573_2013 village of Regonda Mandal and was proceeding to Nekkonda to board a train at Nekkonda to go to Vijayawada to sell it at a higher price. The complainant got the contraband weighed at a nearby shop, collected three (03) samples from the same and seized the contraband as well as the scooter in the presence of the Executive Magistrate and brought the accused to the PS along with the seized property and lodged a report.
3. Basing on the said report, the ASI of Chennaraopet registered a case vide Crime No.36 of 2006 under Section 8(c) read with Section 20(a)(i) of NDPS Act and issued FIR. Further investigation was carried out by SI, Narsampet as per the instructions of the superior officials. The SI, Narsampet affected the arrest of the accused, recorded the statements of the complainant and the police constables who accompanied with him, sent the sample to the Government Chemical Examiner, Warangal for examination and after receipt of a positive report that the sample was containing dry ganja, filed charge-sheet against the accused under Section 8(c) read with Section 20(a)(i) of NDPS Act.
4. Trial was conducted by the Special Sessions Judge for Trial of NDPS Cases (I Additional Sessions Judge), Warangal. A charge was framed under Section 8(c) read with Section 20 of NDPS Act. The prosecution got examined PWs 1 to 5 and got marked Exs.P1 to P10 and MO1. No defence evidence was adduced by the accused. On considering the oral and documentary evidence on record, the learned Special Sessions Judge for NDPS Cases, Warangal found the 3 Dr. GRR, J crla_573_2013 accused guilty for the offence under Section 8(c) read with Section 20 of NDPS Act and sentenced him to rigorous imprisonment for three (03) years and fine of Rs.10,000/-, in default of payment of fine to suffer simple imprisonment for one month for the said offence.
5. Aggrieved by the said conviction and sentence imposed against him, the accused preferred this appeal contending that the judgment of the court below was contrary to the law and facts of the case. The court below ought to have appreciated that there was no independent evidence to show that the alleged dry ganja was seized from the petitioner-accused. The court below ought to have appreciated that the two (02) independence witnesses PWs 2 and 3 did not support the case of the prosecution and as such ought to have acquitted the petitioner. The court ought not to have believed the evidence of PW4, Tahsildar as it was not there on record as to how her presence was secured by PW1 and it was the case of the prosecution that on requisition of PW1, PW4 came to the scene of offence. The court below ought to have appreciated that ASI of Police was not empowered to register the case. The court ought to have appreciated that the prosecution failed to establish the nexus between the accused and the scooter bearing No.AP36-4191. The court ought to have appreciated that in Ex.P1 panchanama, the weight of the dry ganja seized was not mentioned. Subsequently, mentioning the weight as 4 Kg. by the prosecution was not borne out by record and the same was unbelievable. The court ought to have seen that 4 Dr. GRR, J crla_573_2013 the alleged crime did not happen in the manner stated by PW1 and prayed to allow the appeal.
6. Heard learned counsel for the appellant and the learned Assistant Public Prosecutor.
7. The learned counsel for the appellant contended that no written instructions for PW5, the SI of Police of PS Narsampet to conduct the investigation in the case pertaining to PS, Chennaraopet was filed; no written requisition was given to the Executive Magistrate, PW4. As per the NDPS Act, the accused should be taken to the Gazetted Officer, but the Gazetted officer could not be called to the place of offence. The statement of the Executive Magistrate was not recorded, PW4 had not identified the accused, no investigation was conducted as to whom the scooter belonged to, the complainant and the investigating officer was one and same, PW1 had not parted with the investigation even after lodging the complaint. The letter of advice, Ex.P6 was signed by him and relied upon the judgment of the High Court of Andhra Pradesh in Gurajala Ramesh and others v. State of AP1 on the aspect that:
"When the same Police Officer who detected the evidence and arrested the accused, gave a report registered as FIR and filed the charge- sheet, conviction based on such investigation cannot be sustained."
1 2003 (2) ALD (Cri.) 13 (AP) 5 Dr. GRR, J crla_573_2013 and of the judgment of the Hon'ble Apex Court in M.Nageshwar Rao v. State of AP2 on the aspect that:
"The confessional statement, disowned by the appellant and not supported by the witnesses, is of no use for judging the appellant's guilt and must be kept out of consideration."
8. The learned Assistant Public Prosecutor on the other hand contended that the objection as to PW5 belonging to another PS, conducting investigation was not taken before the trial court. There was no cross-examination on PW5 on the said aspect, it was raised for the first time before the appellate court, considering the judgments as submitted by the learned counsel for the appellant that the Police Officer who detected the offence, could not conduct the investigation, further investigation in the case was handed over by superior officials to PW5. The evidence of PW4 would reveal that a requisition was given by PW1. The evidence of PW1 was corroborated by the evidence of PW4. PW4 was an independent witness. The evidence of prosecution witnesses PWs 1, 4 and 5 was corroborating with each other and the documentary evidence marked under Exs.P1 to P10 was proving the guilt of the accused for the offence with which he was charged and contended that there were no reasons to interfere with the judgment of the trial court and prayed to dismiss the appeal.
9. On perusal of the record, the accused was charged for the offence under Section 8(c) read with Section 20 of NDPS Act.
2 2011 AIAR (Criminal) 253) 6 Dr. GRR, J crla_573_2013
10. Section 8 (c) of NDPS Act, 1985 reads as follows:
"8.Prohibition of certain operations. - No person shall -
a) ..........
b) ........
c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorization.
Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf:
Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes."
11. Section 20 of NDPS Act is punishment for the offence under Section 8 of NDPS Act 1985. Section 20 of NDPS Act reads as:
"20. Punishment for contravention in relation to cannabis plant and cannabis,-Whoever, in contravention of any provisions of this Act or any rule or order made or condition of licence granted thereunder,-7
Dr. GRR, J crla_573_2013
a) cultivates any cannabis plant; or
b)produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable.
(i) where such contravention relates to clause
(a) with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees; and
(ii) where such contravention relates to sub- clause (b),--
(A) and involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine, which may extend to ten thousand rupees, or with both;
(B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees; (C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.]
12. As the allegations against the petitioner-accused are that he is transporting dry ganja without any license, the applicable provision is under Section 8(c) which is punishable under Section 20(b)(ii)(B) depending on the quantity found in his possession.
13. PW1 stated in his evidence that on 06.04.2006 at 8:00 AM, while he along with his staff went in search of ganja raids at Thimmarainpad crossroads, while conducting vehicle checking found a person on Bajaj Chetak Scooter 8 Dr. GRR, J crla_573_2013 bearing No AP36-4191 under suspicious circumstances, they stopped him, when searched his vehicle they found dry ganja of 4 Kg in a bag. Then he sent a requisition to Mandal Revenue Officer, Chennaraopet, who visited the scene and conducted seizure panchanama before the mediators. The accused confessed before the mediators that he was transporting dry ganja to Vijayawada to gain money illegally. They collected three (03) samples from the seized contraband and sealed them as per procedure. They also seized the scooter and the remaining contraband. All the proceedings were done under the cover of panchanama Ex.P1. They returned to Police Station along with the accused, seized contraband, panchanama and samples and he gave a report to SHO of PS Chennaraopet and handed over the materials along with the accused.
14. PWs 2 and 3, the panch witnesses turned hostile.
15. PW4 was the MRO, Chennaraopet at the relevant time and she stated that on 06.04.2006, while she was in her office at Chennaraopet, she received a requisition from PW1, in between 8:00 AM to 9:00 AM and accompanied the police officials to a nearby colony of Tahsil Office and found the accused and the panch witnesses. The accused was found along with the scooter. She enquired the details of the accused. He disclosed his identity and that he was a resident of Sarvapur Village. He was carrying a bag on his scooter bearing No. AP36-4191. The accused stated that he was proceeding to Nekkonda Village to sell ganja at Vijayawada at higher price. Accordingly, under the cover of panchanama as in Ex.P1, 4 Kgs. of ganja was seized from the possession of the 9 Dr. GRR, J crla_573_2013 accused. Samples were also lifted by following the procedure and the scooter bearing No. AP36-4191 was also seized. The seized material, scooter and panchanama along with the samples were handed over to PW1. She stated that Ex.P1 panchanama was bearing her signature and the entire proceedings under Ex.P1 took place in her presence.
16. Though the learned counsel for the appellant contended that no written requisition was given to the Tahsildar, the evidence of PW4 would disclose that she received a requisition from the Police. She stated in her cross-examination that no separate acknowledgement was passed by her but she initialed on the requisition. She stated that the scene of offence was at a short distance from her office, it could be covered by walk within two (02) minutes and by 9:00 AM she reached there.
17. The contentions of the learned counsel for the appellant that PW4 being in the office by 8:00 AM itself and not filing the written requisition given to PW4 before the court could not be suspected, when the Gazetted Officer was saying so.
18. The contention of the learned counsel for the appellant that PW4 had not identified the accused was also not correct. PW4 stated in her evidence that she found the accused along with the scooter and she enquired the details of the accused and stated that he disclosed his identity as Orsu Ilaiah and he was a resident of Sarvapur Village. Thus, this court does not find any merit in the contention of the learned counsel for the appellant on the said aspect. 10
Dr. GRR, J crla_573_2013
19. PW5, the SI of Police, Narsampet at the relevant time stated that during the course of investigation, he visited PS Chennaraopet and examined PW1 and LWs 2 and 3, PCs 1809 and 2683 respectively and recorded their statements, he collected the samples lifted by PW1, MO1 was one such sample, it was sent for analysis on the same day with a letter of advice as in Ex.P6 through SDPO, Narsampet, he affected the arrest of the accused, sent him to the court for judicial custody. On 21.04.2006 he received the chemical examiner's report stating that the sample was containing ganja. The said report was marked as Ex.P7. He gave a requisition to the Judicial Magistrate of I Class, Narsampet for destruction of case property. Ex.P8 was the requisition given by him and on the reverse of Ex.P8, the learned Magistrate issued certificate of destruction as in Ex.P9 dated 21.07.2006. The destruction process was also photographed. He also filed eight (08) positive photographs and their negatives, marked as Ex.P10. He stated that on completing the investigation, he filed charge-sheet against the accused for contravention of Section 8(c) read with Section 20(b)(ii)(B) of NDPS Act.
20. Thus, he stated about the investigation conducted by him. His cross- examination would not reveal any questions with regard to his incompetency to conduct the investigation. If any question was put to him, he could have explained as to how he being the SI of PS Narsampet investigated the case of PS Chennaraopet. As per the charge-sheet, on the instructions of the superior officials, PW5 had taken the further investigation of the case. The absence of 11 Dr. GRR, J crla_573_2013 filing written instructions itself would not vitiate the investigation conducted by PW5, when the same was not even put to PW5 during his cross-examination. The said aspect was not raised before the trial court to answer the same and the same cannot be questioned in the appeal for the first time.
21. In a similar manner, the letter of advice marked under Ex.P6 being signed by PW1 on 08.04.2006 also cannot be considered as the entire further investigation was conducted by PW1 but not by PW5 and that the investigation would be vitiated on the said aspect. There was not much delay in sending the sample to the chemical examiner for analysis. Ex.P6 would disclose that the sample was sent to the chemical examiner on 08.04.2006 after the detection of offence on 06.04.2006. When PW5 was questioned with regard to the said delay, he admitted that there was a delay of two (02) days and as he was on bandobust duty, the delay of two (02) days occurred in sending the sample for analysis. The chemical examiner's report was marked as Ex.P7. It would disclose that the sample was received on 10.04.2006 through SDPO, Narsampet and the report was issued on 20.04.2006 i.e., within 10 days after its receipt. Thus, there was no much delay in sending the sample to the chemical examiner as well as in receipt of report from the chemical examiner also. The report marked under Ex.P7 would also disclose that the seals on the samples were correct and intact. Thus, there is no reason to suspect that the delay of two (02) days in sending the sample to the chemical examiner caused any prejudice to the accused.
12
Dr. GRR, J crla_573_2013
22. The trial court also observed that as the contraband seized was dry ganja, the delay of two (02) days in sending the sample to the chemical analyst would not cause any prejudice to the accused, as there was no possibility of change of quality or characteristics of the sample due to the said delay. This Court does not find any illegality in the observation of the trial court in the said regard.
23. The learned counsel for the appellant contended that as the panch witnesses turned hostile and did not support the case of the prosecution, the trial court ought to have acquitted the petitioner and relied upon the judgment of the Hon'ble Apex Court in M.Nageshwar Rao v. State of AP (2 supra) wherein it was held that:
"25. Before proceeding to examine the evidence adduced by the prosecution in support of its case, it would be better to put aside the so called confessional statement made by the appellant. It is seen above that the confessional statement was completely repudiated by the appellant before the trial court. Further, the statement was supposedly made in presence of `panchas,' namely, Sri. S. Chengaiah Chetty and Sri. G. Venkateswar Reddy and it was shown to have been signed by them as witnesses along with Inspector Ashok Kumar Singh, the investigating officer (PW18). Of the two panchas, only Venkateswar Reddy was examined as PW12, but he did not support the prosecution case either in regard to the appellant's confessional statement or the Seizure Report of the Limca bottle and was declared hostile. It was only PW18, the investigating officer, who stated before the trial court that the accused voluntarily made the confessional statement and voluntarily produced the empty Limca bottle from the `sajja' at his residence. The confessional statement, disowned by the appellant and not supported even by the witness, 13 Dr. GRR, J crla_573_2013 is of no use for judging the appellant's guilt and must be kept out of consideration."
24. It was a case under Section 302 of IPC and as the panch witnesses had turned hostile and the accused repudiated his confession, the Hon'ble Apex Court observed as such. But, in the present case, the recovery was made in the presence of Gazetted Officer, who is an independent witness. Though the panch witnesses turned hostile, the evidence of the Gazetted Officer, PW4 is consistent with regard to the recovery of the contraband from the possession of the accused. Though, the confession is inadmissible, the recovery can be believed. There is no reason to believe that PW4 is interested in any way for securing the conviction of the accused. Hence, her evidence is independent and trustworthy with regard to the recovery of the contraband from the possession of the accused.
25. The learned counsel for the appellant relied upon the judgment of the High Court of Andhra Pradesh in Gurajala Ramesh and others v. State of AP (1 supra) on the aspect that the Police Officer who detected the offence and arrested the accused and gave a report which was registered as FIR and filed the charge-sheet conviction based on such investigation could not be sustained.
26. But the Hon'ble Apex Court in a recent judgment in Mukesh Singh v. State (Narcotic Branch of Delhi)3 a larger bench consisting of five (05) Judges, on the correctness of the view in the case of Mohanlal v. State of 3 2020 SCC Online SC 700 14 Dr. GRR, J crla_573_2013 Punjab4 whether the investigation conducted by the Police, who himself was the complainant, whether the trial would be vitiated and the accused is entitled to acquittal held that:
From the above discussion and for the reasons stated above, we conclude and answer the reference as under:
"i. That the observations of this Court in the case of Bhagwan Singh v. The State of Rajastan5, Megha Singh v. State of Haryana6, State by Inspector Police, NIB, Tamilnadu v. Rajangam7 and the acquittal of the accused by this Court on the ground that as the informant and the investigator was the same, it has vitiated the trial and the accused is entitled to acquittal has to be treated to be confined to their own facts. It cannot be said that in the aforesaid decisions, this court laid down any general proposition of law that in each and every case where the informant is the investigator, there is a bias caused to the accused and the entire prosecution case is to be disbelieved and the accused is entitled to acquittal."
"ii. In a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator; the accused is not entitled to acquittal. The matter has to be decided on case to case basis. A contrary decision of this Court in the case of Mohanlal v. State of Punjab (4 supra) and any other decision taking a contrary view that the informant cannot be the investigator and in such 4 2018 17 SCC 627 5 AIR 1976 1 SCC 15 6 1996 11 SCC 709 7 2010 15 SCC 369 15 Dr. GRR, J crla_573_2013 a case the accused is entitled to acquittal are not good law and they are specifically over ruled."
and answered the reference accordingly.
27. Hence, the judgment of the AP High Court on the said aspect relied by the learned counsel for the appellant is not the law on this aspect and the same cannot be relied upon.
28. This Court does not find any illegality in the judgment of the trial court with regard to coming to the conclusion of confirmation of the guilt of the accused for the offence under Section 8(c) read with Section 20(b)(ii)(B) of NDPS Act. The sentence imposed against the petitioner is also appropriate to the offence committed by him. As such, this Court does not find any need to interfere with the same.
29. As such, the appeal is dismissed upholding the judgment of the trial court in NDPS Sessions Case No. 242 of 2006 passed by the Special Sessions Judge for Trial of NDPS Cases (I Additional Sessions Judge), Warangal on 05.07.2013. The bail granted to the appellant-accused is cancelled. The appellant-accused shall surrender before the trial court forthwith and if he fails to surrender, the trial court shall take necessary steps to take him into custody.
Miscellaneous applications pending, if any, shall stand closed.
____________________ Dr. G.RADHA RANI, J 21st November, 2022 nsk.