THE HONOURABLE DR.JUSTICE G.RADHARANI
CRIMINAL APPEAL NO.508 of 2021
JUDGMENT:
This Criminal Appeal is filed by the appellant - A1 against the judgment dated 22.11.2021 in SC NDPS No.8 of 2016 on the file of the Court of Special Sessions Judge for Trial of Cases under Narcotic Drugs and Psychotropic Substance Act (for short "NDPS" Act), 1958 - cum - I Additional Sessions Judge, Khammam District in convicting him under Section 8(c) read with Section 20(b) of NDPS Act, 1985 and sentencing him to rigorous imprisonment for a period of ten (10) years and fine of Rs.1,00,000/- and in default of payment of fine to undergo rigorous imprisonment for a period of six (06) months.
2. The case of the prosecution in brief as per the charge-sheet filed by the CI of Police, Bhadrachalam was that A1 belonged to Kappathotti Village of Kurunuru Panchayat, Kalimella Mandal of Malkanagiri District, Odisha State and he used to purchase ganja at cheaper rate from the neighbouring areas of his village and transport to Hyderabad on RTC buses from Vishakhapatnam via Sileru, Mothugudem and Bhadrachalam with the help of Hyderabad night service bus crew by offering them huge amounts. Similarly, A1 purchased 50 kgs of ganja @ Rs.200/- per kg in a village in Odisha State prior to 2 Dr.GRR, J crla_508_2021 05.01.2016, packed in 9 packets, kept in 2 bags, came to Sileru Village of Vishakhapatnam District in the midnight to catch Hyderabad bus. Around 2:30AM, he stopped an RTC bus bearing No. AP 31 Z 0207 and came to an understanding with A2 and A3, who were the APSRTC bus drivers of Vishakhapatnam - I depot by offering an amount of Rs.4,000/- wherein A2 and A3 agreed to transport the illegal ganja to Hyderabad. Accordingly, A1 boarded the bus at Sileru Village and kept the 2 bags of ganja beneath the rear seats of the bus.
3. On reliable information, on 05.01.2016 at 5:00 AM, the SI of Police, Bhadrachalam Town PS made an entry in the general diary, informed his superiors and proceeded to the out-skirts of Bhadrachalam along with ASI, Head-Constable and 2 Police Constables and conducted vehicle checking. They stopped the RTC Bus coming towards Bhadrachalam from Nellipaka side, checked it at the out-skirts of Bhadrachalam Town, arrested A1 to A3 and seized the contraband ganja of 50 kgs under the cover of panchanama in the presence of Tahsildar / Executive Magistrate, Bhadrachalam and the mediators. They collected three samples from each bundle, total 27 samples from out of 9 packets and sent the panchanama to the SHO with an endorsement to register a case under NDPS Act, 1985.
4. The ASI, registered the case as Crime No.1 of 2016 under Section 8(c) read with 20(b), 25 and 29 of NDPS Act, 1985. Further investigation was 3 Dr.GRR, J crla_508_2021 conducted by the CI of Police. The CI visited the crime scene located on R&B road infront of Vennela Water Plant at Kunavaram Road, Bhadrachalam, which was 2 km away from Bhadrachalam Town PS on eastern side, drafted the rough sketch and its topography and incorporated the same in crime detail form. He recorded the statements of the witnesses, sent A1 to A3 for judicial custody and forwarded the samples to the Director, Forensic Science Laboratory (for short "FSL"), Red Hills, Hyderabad through letter of advice through the Assistant Superintendent of Police (for short "ASP"), Bhadrachalam. After receiving the FSL report, confirming that it was ganja, he filed charge-sheet against A1 to A3 for the offences under Section 8(c) read with 20(b), 25 and 29 of NDPS Act, 1985.
5. The Special Court had taken cognizance of the case under Section 20(b) of NDPS Act, 1985 and on appearance of the accused, framed charges under Section 20(b) read with Section 8(c) of NDPS Act, 1985. As the accused pleaded not guilty, conducted the trial.
6. During the course of trial, the prosecution examined PWs.1 to 7 and marked Exs.P.1 to P.7 and M.O.1. No defence evidence was adduced by the accused.
7. On considering the oral and documentary evidence on record, the Special Court acquitted A2 and A3 for the offences under Section 8(c) read with 20(b) 4 Dr.GRR, J crla_508_2021 of NDPS Act, 1985, but found A1 guilty for the offence under Section 8(c) read with 20(b) of NDPS Act, 1985 and sentenced him to undergo rigorous imprisonment for a period of ten(10) years and a fine of Rs.1,00,000/- and in default of payment of fine to undergo rigorous imprisonment for a period of six (06) months.
8. Aggrieved by the said conviction and sentence recorded by the Special Court, the accused No.1 preferred this appeal contending that the prosecution failed to establish the seizure of contraband from the possession of A1 while he was travelling in APSRTC bus bearing No. AP 31 Z 0207 on 05.01.2016. The investigating agency did not collect any particulars of the bus and failed to seize the bus ticket to prove that A1 travelled in APSRTC bus bearing No. AP 31 Z 0207 on 05.01.2016. The Special Court acquitted A2 and A3 on the ground that the prosecution failed to connect them with the APSRTC bus, but failed to apply the same analogy to the accused No.1. The trial court failed to see that PW.2, the witness who weighed the contraband, turned hostile, all the other witnesses examined by the prosecution were official witnesses and no independent witness was examined to prove the charges against the accused. The Special Court failed to see that there was total non-compliance of the mandatory provision under Section 42 of the NDPS Act and therefore the conviction was unsustainable. The Special Court failed to observe that the signature of A1 was not obtained on the panchanama and on the seizure slips 5 Dr.GRR, J crla_508_2021 and failed to follow the inventory procedure as contemplated under Section 52 of the NDPS Act. The specimen seal was not put on a separate paper and there was violation of Section 55 of NDPS Act, sentencing the appellant with 10 years rigorous imprisonment and fine of Rs.1,00,000/- was excessive and prayed to allow the appeal.
9. Heard the learned counsel for the appellant and the learned Additional Public Prosecutor.
10. The learned counsel for the appellant contended that there was non- compliance of the mandatory requirement under Section 42 of NDPS Act. No evidence was produced by the prosecution to show that the SI, who received the information, had reduced the same into writing and informed his superiors and relied upon the judgments of the Hon'ble Apex Court in Karnail Singh v. State of Haryana1, State of Rajasthan v. Jagraj Singh @ Hansa2, Sukhdev Singh v. State of Haryana3 and Boota Singh & Others v. State of Haryana4.
11. The learned Additional Public Prosecutor on the other hand supported the judgment of the Special Court and contended that the same was in accordance with law and the facts of the case and there was no reason to interfere with the same.
1 (2009) 8 SCC 539 2 (2016) 11 SCC 687 3 (2013) 2 SCC 212 4 AIR 2021 SCC 1913 6 Dr.GRR, J crla_508_2021
12. As the learned counsel for the appellant is contending that there was non- compliance of Section 42 of NDPS Act, it is considered necessary to extract the same. Section 42 of NDPS Act reads as follows:
"42. Power of entry, search, seizure and arrest without warrant or authorisation.-- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,--
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or 7 Dr.GRR, J crla_508_2021 conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
Provided that in respect of holder of license or manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector.
Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior".
13. As seen from the above provision, Section 42 relates to power of entry, search, seizure and arrest without warrant or authorisation. Sub-Section 1 of Section 42 of NDPS Act lays down that the empowered officer, if has prior information given by any person, should necessarily take it down in writing and where he has reason to believe from his personal knowledge that offences under 8 Dr.GRR, J crla_508_2021 chapter IV have been committed or that materials which may furnish evidence of commission of such offence are concealed in any building, etc., he may carry out the arrest or search, without warrant between sunset and sunrise and he may do so by recording his reasons of belief. The proviso to Sub-Section 1 of Section 42 lays down that if the empowered officer has reason to believe that a search warrant or an authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
14. Thus, the information must be with regard to the material concealed in any building, conveyance or enclosed place to attract the provision under Section 42 of NDPS Act and if the delay in obtaining the search warrant to enter such place would facilitate the offender to escape, then at any time between sunset and sunrise, he could enter such place by recording reasons for his belief in writing and informing his superiors.
15. The evidence of PW.1, the SI of Police would disclose that on 05.01.2016 at about 5:00 AM, on reliable information, he along with LWs.2 to 5 started conducting vehicle checking at Kunavaram X Road. His cross-examination would not disclose any questions as to where he received the information and what was the information received by him and with regard to non-compliance of Section 42 of NDPS Act procedure. There was only one general question asked 9 Dr.GRR, J crla_508_2021 to the witness that he did not follow the procedure laid down in NDPS Act, which was denied by the witness. It was not even suggested that there was non- compliance of Section 42 of NDPS Act. As per the prosecution case, the contraband ganja was seized from an RTC bus, which was a public transport vehicle and at about 6:00 AM, which was not between sunset and sunrise.
16. Section 43 of NDPS Act is pertaining to power of seizure and arrest in public place. Section 43 of NDPS Act reads as follows:
"43. Power of seizure and arrest in public place.-- Any officer of any of the departments mentioned in section 42 may--
(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation -- For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public".
10
Dr.GRR, J crla_508_2021 The explanation to Section 43 defines the expression "public place" as includes any public conveyance. The word "public conveyance" has to be understood as a conveyance which can be used by the public in general.
17. The Hon'ble Apex Court in Directorate of Revenue & Another vs Mohammed Nisar Holia5, held that:
"14. Section 43, on plain reading of the Act, may not attract the rigours of Section 42 thereof. That means that even subjective satisfaction on the part of the authority, as is required under sub-section (1) of Section 42, need not be complied with, only because the place where at search is to be made is a public place. If Section 43 is to be treated as an exception to Section 42, it is required to be strictly complied with. An interpretation which strikes a balance between the enforcement of law and protection of the valuable human right of an accused must be resorted to. A declaration to the effect that the minimum requirement, namely, compliance of Section 165 of the Code of Criminal Procedure would serve the purpose may not suffice as non- compliance of the said provision would not render the search a nullity. A distinction therefore must be borne in mind between a search conducted on the basis of a prior information and a case where the authority comes across a case of commission of an offence under the Act accidentally or per chance."
18. Thus Section 43 is an exception to Section 42. As against the word "empowered officer" in Section 42, the word used in Section 43 is "any officer" and any officer who has reason to believe that an offence was committed in any public place or in transit, can detain and search whom he has reason to believe 5 (2008) 2 SCC 370 11 Dr.GRR, J crla_508_2021 to have committed the said offence and seize any narcotic drug or psychotropic substance or controlled substance from his possession if the same appeared to be unlawful and arrest him and any other person in his company.
19. Thus, as the alleged contraband was seized from the possession of A1 while he was travelling in an RTC bus, which was a public conveyance, the correct provision applicable was under Section 43 of NDPS Act but not the one under Section 42 of NDPS Act. Thus, there is no requirement for the prosecution to prove the compliance of Section 42 of NDPS Act, 1985. The judgments cited by the learned counsel for the petitioner - appellant under Section 42 of NDPS Act are not applicable to the present facts of the case.
20. The evidence of PW.1 would disclose that at about 6:00 AM on 05.01.2016, they stopped the bus belonging to Visakhapatnam depot -1 coming from Nellipaka side towards Bhadrachalam, boarded the bus and searched the bags of the passengers, they found a person in suspicious circumstance, asked him to reveal his identity, he was reluctant to give his details, but on his repeated questioning, he disclosed his name as Pangi Prasad (A1) and shown two bags containing ganja. He got down A1 from the bus along with the two bags, informed the local MRO and requested him to come to the spot to conduct panchanama. He also secured the mediators and a person to weigh the ganja. On his request, the Tahsildar conducted panchanama in the presence of the mediators. They found five packets in one bag and 4 packets in the second bag. 12
Dr.GRR, J crla_508_2021 When they weighed the ganja, it was about 50 kgs. They had collected 27 samples from 9 packets, each sample weighing about 50 grams and seized the contraband by affixing panch slips.
21. The Tahsildar / Executive Magistrate, who conducted the panchanama was examined as PW.3. PW.3 stated that on 05.01.2016 at 6:00 AM, he received a phone call from the Sub-Inspector of Police (PW.1) with a request to come to Kunavaram X Road to conduct panchanama. He informed the VRO and asked him to come to the spot. By the time he reached the spot, the Police and the accused were there. Later, VRO also came to the spot. He found 2 bags in possession of A1. On his enquiry, A1 confessed his guilt of transporting ganja. There were 4 packets in one bag and 5 packets in the second bag. The said ganja was weighed and it was about 50 kgs. Three samples were drawn from each bundle, in total 27 samples were lifted.
22. The VRO, Bhadrachalam who acted as one of the mediators, was examined as PW.4. PW.4 stated that by the time he reached the spot, he found the Tahsildar / Executive Magistrate, the Police and the three accused persons with 2 bags. PW.4 also stated that the owner of Vennela Water Plant (who acted as the second mediator) was also there. At the request of the Police and PW.3, they opened the bags and found ganja packets. He also identified the accused as the said persons and stated that the accused confessed the guilt of transporting the ganja. He stated that in one bag there were 5 packets, and in 13 Dr.GRR, J crla_508_2021 the second bag there were 4 packets. With the help of a person, they got them weighed and found them to be 50 kgs of ganja. Police collected 3 samples from each packet, total 27 samples were drawn. On the dictation of PW.3, the confession statement of A1 was recorded. Police seized the bags with ganja and the samples by affixing panch slips.
23. Thus, the evidence of PW.1 is corroborated with the evidence of PWs.3 and 4. PWs.3 and 4 are the independent official witnesses. They cannot be considered as interested witnesses as they would be having no interest in securing the conviction of the accused. Their evidence would disclose that the panchanama was conducted at the scene of offence itself and the contraband was seized from the bags in possession of the accused. It was weighed and samples were drawn in accordance with the procedure prescribed under law.
24. PW.5 is the ASI, who registered the case. PW.6 is the CI of Police, who drafted the rough sketch and prepared the crime detail form in the presence of the witnesses, recorded the statements of the witnesses and forwarded the samples to FSL, Hyderabad for analysis and report. PW.7 is the inspector, who filed charge-sheet on receipt of the FSL report. The FSL report was marked as Ex.P.7. Ex.P.7 would also disclose that it was received with a letter dated 10.01.2016. Thus, there was no much delay in sending the samples to the FSL for analysis, as the samples were sent through ASP, Bhadrachalam. There was no cross-examination on the aspects raised by the appellant - A1 in the grounds 14 Dr.GRR, J crla_508_2021 of appeal with regard to the specimen seal and violation of any provisions under Section 55 of NDPS Act or any infirmities in sealing the contraband or sending them to FSL.
25. This Court does not find any infirmity in the evidence of the witnesses or in the judgment of the Special Court to set aside the same. The evidence of the witnesses is cogent, consistent and reliable. The Special Court considered all the aspects of the case and scrutinized the evidence of the witnesses in detail and came to the conclusion about the guilt of the accused No.1 for the offence under Section 8(c) read with 20(b) of NDPS Act, 1985. Hence, this Court does not find any illegality or error in the judgment of the trial court in convicting the appellant - A1.
26. The Special Court on considering that the appellant - A1 was in possession of a commercial quantity of contraband ganja sentenced him to rigorous imprisonment for a period of ten years which is appropriate, just, proportionate and commensurate with the nature and gravity of the crime committed by the accused.
27. In the result, the Criminal Appeal is dismissed confirming the conviction and sentence against the appellant - accused by the judgment dated 22.11.2021 in SC NDPS.No.8 of 2016 by the Special Sessions Judge for Trial of Cases 15 Dr.GRR, J crla_508_2021 under Narcotic Drugs and Psychotropic Substance Act, 1985 - cum - I Additional Sessions Judge, Khammam District.
Miscellaneous petitions pending, if any, shall stand closed.
_____________________ Dr. G.RADHA RANI, J 8th February, 2023 nsk.