Cherukupalli Naresh Reddy vs The State Of A.P
2022 Latest Caselaw 9633 AP

     THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH R0Y

             Criminal Appeal Nos.125, 488 and 543 of 2018

COMMON JUDGMENT:


       These three criminal appeals arise out of the judgment, dated

20.12.2017, passed in NDPS Sessions Case No.138 of 2016 on the

file of the learned Special Sessions Judge for trial of the cases

under the Narcotic Drugs and Psychotropic Substances Act, 1985-

cum-I Additional Sessions Judge, East Godavari District at

Rajamahendravaram, whereby the appellants, who are A-1, A-3

and A-4 in the said case, were found guilty for the offence

punishable under Section 8(c) r/w. Section 20(b)(ii)(C) of the

Narcotic Drugs and Psychotropic Substances Act, 1985, (for short,

"the Act") and were convicted for the said offence and sentenced to

undergo rigorous imprisonment for a period of ten years each and

to pay a fine of Rs.1.00 Lakh each and in default of payment of fine

to undergo simple imprisonment for a period of six months each for

the aforesaid offence.


2)     As these three appeals arise out of the same judgment of

conviction, the three appeals were heard together and they are

being disposed of by this common judgment.
                                  2

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3) Facts of the prosecution case may briefly be stated as follows:

(a) On 03.01.2016, PW.4 the Sub-Inspector of Police,

Jaggampeta Police Station, received reliable information regarding

illegal transportation of ganja in a vehicle. Immediately, after

obtaining permission from the Sub-Divisional Police Officer,

Peddapuram, to conduct raid, he secured the presence of the

mediators and along with the mediators and the constables, he

reached N.H.16 road opposite to Ananthalakshmi Engineering

Works, outskirts of Ramavaram Village of Jaggampeta Mandal, and

conducted a vehicle check in the presence of the mediators, who

are PW.1 the V.R.O., and another person by name Syama

Sundaram. At that time, they noticed one van bearing Registration

No.AP 20 Y 0129 coming towards them. The persons travelling in

the said van tried to escape after seeing the police. The Police

apprehended them. The appellants, who are A-1, A-3 and A-4 were

found in the said van. On interrogation by the police, they revealed

their identity and stated that they are transporting ganja in the

said vehicle. A mediators report, which is exhibited as Ex.P2, was

drafted in the presence of the mediators at that time. PW.4 the

Sub-Inspector of Police informed them that they would be searched

before the Mandal Executive Magistrate and they agreed for the

same. Accordingly, Ex.P4 requisition was given to PW.2, who is the

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Tahsildar of Jaggampeta, requiring her presence at the scene of

offence for the purpose of conducting search. Accordingly, she

reached the scene of offence. Thereafter, the van was searched in

the presence of PW.1 V.R.O., PW.2 Tahsildar and the other

mediator. A-1, A-3 and A-4 opened the screws in the cabin of the

van and about five gunny bags and seven plastic bags containing

ganja were found in the said van. Each bag was found to be

weighing 20 K.Gs. and each bag again contains 10 packets

weighing 2.00 K.Gs. each. Police got the said bags weighed by

PW.3, who is a vegetable vendor. Thereafter, police collected

samples of 100 grams of two in number from one packet only from

each bag. Thus, 24 samples were collected. The total weight of

ganja was found to be 240 K.Gs. Samples were kept in polythene

covers and wrapped with paper covers. Identity slips were affixed

containing signatures of mediators, the Tahsildar, as well as the

accused and the police. M.Os.1 to 24 are the said samples.

Mos.25 to 48 are the ganja bags seized at that time.

(b) Thereafter, A-1, A-3 and A-4 were searched personally

before the Tahsildar- PW.2 and at that time, M.Os.49 to 51 three

mobile phones were found and they were seized from their

possession. Police also seized cash of Rs.600/- from A-1, cash of

Rs.900/- from A-3 and cash of Rs.710/- from A-4, found at the

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time of personal search. M.Os.52, 53 and 54 are the covers

containing the said cash seized from each of the accused. A

mediators report was prepared at that time i.e. at the time of

seizure of the contraband and lifting the samples and seizure of the

mobile phones and the cash. Ex.P-3 is the said mediators report

prepared at that time, signed by the Tahsildar-cum-Mandal

Executive Magistrate - PW.2, the two mediators i.e. PW.1 and

another and also A-1, A-3 and A-4. Thereafter, the accused were

arrested and they were brought to the police station. Ex.P-7 FIR

was registered for the offences punishable under Sections 8(c)

r/w.20(B)(I) of the Act and a case in Crime No.2 of 2016 was

registered in Jaggampeta Police Station.

(c) The accused were produced before the concerned

Magistrate and they are remanded to judicial custody. The

samples were sent to the Government Chemical Examiner,

Prohibition and Excise Department, Kakinada, for examination and

report. The Chemical Examiner opined in his report that the

samples are ganja. Ex.P.10 is the Analyst Report.

(d) PW.5 Inspector of Police verified the investigation done by

the Investigating Officer and PW.6 another Inspector of Police took

up further investigation and filed the charge-sheet alleging that A-

1, A-3 and A-4 were found to have committed an offence

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punishable under Section 8(c) r/w.Section 20(b)(ii)(C) of the Act of

transporting ganja illegally. As, A-2 and A-5 are found to be

absconding and they could not be nabbed, charge-sheet was filed

only against the appellants who are A-1, A-3 and A-4.

(e) In the trial Court, charge under Sections 8(c)

r/w.20(b)(ii)(C) of the Act was framed against the accused after

cognizance of the case for the said offences was taken. The charges

were read over to the accused and explained to them. The accused

abjured the guilt and claimed to be tried.

(f) During the course of trial, prosecution got examined PW.1

to PW.6 witnesses and got marked Exs.P.1 to P.10 documents and

M.Os.1 to 57 material objects to substantiate the case of the

prosecution.

(g) At the culmination of the trial, eventually, the trial Court

found all accused Nos.1, 3 and 4, who were tried for the said

offence, guilty of committing the said offence punishable under

Section 8(c) r/w. Section 20(b)(ii)(C) of the Act and accordingly,

convicted them and sentenced them to undergo imprisonment and

to pay fine, as detailed supra.

(h) Aggrieved thereby, they preferred the instant appeals

assailing the legality and validity of the impugned judgment of

conviction and sentence imposed against them.

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4) Heard learned counsel for the appellants Sri Chandrasekhar

Ilapakurti, Sri Challa Venkat and Sri G.Venkat Reddy and learned

Additional Public Prosecutor for the respondent State Sri N.Sravan

Kumar.

5) Learned counsel for the appellants sought to assail the

validity of the impugned judgment of conviction mainly on the

ground that there is no valid personal search of the accused as

contemplated under Section 50 of the Act and it vitiates the finding

of conviction recorded by the trial Court. So, he would contend

that the appellants are entitled for acquittal.

6) Elaborating the contention, learned counsel for the appellants

Sri Chandrasekhar Ilapakurti would submit that the evidence on

record, both oral and documentary, as can be seen from the

testimony of PWs.1, 2 and 4 viz., the V.R.O., the Tahsildar and the

Sub-Inspector of Police, coupled with Ex.P-6 notice served under

Section 50 of the Act on the accused by the police, show that a

common notice was issued to all the three accused seeking their

consent for their personal search before a Magistrate and the same

is not permissible under law and independent notices to the

individual accused shall be given informing their right to be

searched before a Magistrate or a Gazetted Officer. So, he would

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submit that there is no proper compliance of the mandatory

requirement under Section 50 of the Act. He would then contend

that it is mandatory on the part of the police to inform the accused

of their right to be searched before the Magistrate or a Gazetted

Officer and mere asking them whether they are willing to be

searched before a Magistrate or a Gazetted Officer, as has been

done in this case under Ex.P.6, is not a valid compliance of Section

50 of the Act. Therefore, he would contend that as there is no valid

compliance of Section 50 of the Act that the conviction and

sentence based on the said search and recovery of the contraband

is not valid under law and that the appellants are entitled for

acquittal.

7) Learned Additional Public Prosecutor Sri Sravan Kumar

appearing for the respondent State would contend that in this case,

there is a search of both the vehicle i.e. the van and also search of

person of the three accused and he would submit that the

contraband was recovered only when search of the van was made

and no contraband was recovered from the search of the person of

the three accused and only mobile phones and cash were recovered

during the search of the person of the accused. So, he would

contend that proper compliance of Section 50 as per law is required

only for the purpose of searching a person of the accused and for

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recovery of contraband from them during the said personal search

and if contraband was recovered otherwise i.e. from the vehicle,

then, the non-compliance of Section 50 of the Act or following any

defective procedure in compliance of Section 50, if any, would not

affect the case of the prosecution and it would not vitiate the

conviction and sentence rendered on the basis of the contraband

recovered from the vehicle. So, he would contend that even though

personal search was made and as no contraband was recovered at

the time of personal search, the contention of the accused holds no

water.

8) As regards the contention of the learned counsel appearing

for the appellants that individual communication is to be given to

each of the accused to obtain independent consent from each

accused for personal search before the Magistrate or a Gazetted

Officer, and a joint communication to all the accused is not valid to

comply with the requirement of Section 50 of the Act is concerned,

there is merit in the said contention. The Apex Court in the case of

State of Rajasthan v. Parmanand1 held at para.17 of the

judgment as follows:

1 (2014) 5 SCC 345

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"17. In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate."

9) Therefore, from the ratio laid down in the aforesaid judgment

of the Apex Court, the legal position is clear that when there are

several accused and when a personal search is sought to be made,

they must individually be informed of their right to be searched

before the Magistrate or a Gazetted Officer and a joint

communication of the said right is not proper compliance with

Section 50 of the Act. In the instant case, the evidence on record

as can be seen from Ex.P6 and the evidence of PWs.1, 2 and 4, it is

evident that a joint communication was made to the accused

stating that they would be searched before the Magistrate and

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there was no individual communication to each of the accused.

Therefore, it is to be held that Section 50 of the Act is not properly

complied with.

10) Similarly, the legal position is also now fairly well-settled that

mere making an enquiry by asking the accused whether the

accused would like to be searched before the Magistrate or a

Gazetted Officer is also not proper compliance with the requirement

under Section 50 of the Act. All that is required is to inform the

accused of their right to be searched before the Magistrate or a

Gazetted Officer either orally or in writing for proper compliance of

Section 50 of the Act.

11) The Constitution Bench of the Apex Court in the case of

State of Punjab v. Baldev Singh2 held that it is an obligation of

the empowered officer and his duty before conducting the search of

the person of a suspect, on the basis of prior information, to inform

the suspect that he has the right to require his search being

conducted in the presence of a Gazetted Officer or a Magistrate and

failure to so inform the suspect of his right, would render the

search illegal because the suspect would not be able to avail of the

protection which is inbuilt in Section 50 of the Act. Further, held

2 (1999) 6 SCC 172

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that the provisions of Section 50 of the Act implicitly make it

imperative and obligatory and cast a duty on the Investigating

Officer to ensure that search of the concerned person is conducted

in the manner prescribed by Section 50, by intimating to the

concerned person about the existence of his right, that if he so

requires, he shall be searched before a Gazetted Officer or a

Magistrate.

12) In the above judgment, the Constitution Bench, did not

express any opinion as to whether the provisions of Section 50 are

mandatory or not. But, considering the purpose for which the

safeguard has been made, only held that the provisions of Section

50 of the Act implicitly make it imperative and obligatory and cast

a duty on the Investigating Officer to ensure that search of the

concerned person is conducted in the manner prescribed by

Section 50, by intimating the concerned person about the existence

of his right. Also held that failure to give such intimation or

information may not vitiate the trial, but renders the recovery of

the illicit article suspect and vitiate the conviction and sentence of

an accused, if recorded only on the basis of the possession of such

illicit article.

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13) Again, in view of the divergent opinions expressed by different

Benches of the Apex Court, while interpreting the dictum laid down

by the Constitution Bench in Baldev Singh2 case, the question

whether before conducting the personal search, the police officer

concerned is merely required to ask the suspect whether he would

like to be produced before the Magistrate or a Gazetted Officer for

the purpose of search or is the suspect required to be made aware

of the existence of his right in that behalf under law, was referred

to another Constitution Bench in the case of Vijaysinh Chandubha

Jadeja v. State of Gujarat3. Two, 3-Judge Benches of the Apex

Court in the case of Joseph Fernandez v. State of Goa4 and

Prabha Shankar Dubey v. State of M.P.5 took the view that mere

asking whether the accused would like to be searched before a

Gazetted Officer or a Magistrate would be substantial compliance

with Section 50 of the Act and another three-Judge Bench in the

case of Krishna Kanwar v. State of Rajasthan6 took the view that

what is necessary is that the accused should be made aware of the

existence of right to be searched in the presence of one of the

officers named in the Section. Therefore, in view of the said

3 (2011) 1 SCC 609 4 (2000) 1 SCC 707 5 (2004) 2 SCC 56 6 (2004) 2 SCC 608

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divergent opinions expressed by various Benches, the matter was

referred to another Constitution Bench in the case of Vijaysinh

Chandubha Jadeja3 to decide whether mere asking the accused

whether he would like to be searched before a Magistrate or a

Gazetted Officer is sufficient compliance of Section 50 of the Act or

whether he should be informed of his right to be searched in the

presence of said officers. That is only the limited question, which

was referred to the Constitution Bench. Answering the reference,

the Constitution Bench held that it is mandatory for the

Investigating Officer to inform the suspected person of his right

under Section 50 to be searched in the presence of a Gazetted

Officer or a Magistrate, if so desired by the suspect, and mere

asking him whether he would like to be searched in the presence of

the said officers is not sufficient compliance of Section 50 of the

Act. Also held, that, the dictum of "substantial compliance" cannot

be read into Section 50 of the Act.

14) Thus, the legal position is now authoritatively settled stating

that it is mandatory to inform or make the suspect aware of his

right to be searched before the officers named in Section 50 of the

Act for valid compliance of the said Section and mere asking him

whether he would like to be searched before the said officers is not

valid compliance of the said Section.

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15) Therefore, if Ex.P.6, which is the notice served under Section

50 of the Act on the three accused, for compliance with Section 50

of the Act, and the evidence of PW.2 the Tahsildar and PW.4 the

Sub-Inspector of Police is subjected to judicial scrutiny and

considered in the light of the law enunciated by the Apex Court, as

discussed above, to ascertain whether there is valid compliance of

Section 50 of the Act in this case as required under law or not, as

there is joint communication of the said right to all the three

accused without individual communication of the said right to each

of the accused, in view of the law laid down in Parmanand1 case, it

is to be held that there is no sufficient compliance of Section 50 of

the Act. Further, as the accused were only asked whether they

would like to be searched before the Magistrate and they were not

informed of their right to be searched in the presence of the said

officer, in view of the law laid down by the Constitution Bench of

the Apex Court in the case of Vijaysinh Chandubha Jadeja3 it is

to be held that there is no valid compliance of Section 50 of the Act.

Thus, the personal search of the accused made under Section 50 of

the Act and the recovery of the three mobile phones and the cash

from them, i.e. M.Os.49 to 51 and MOs.52 to 54, is not valid under

law on the above two counts.

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16) However, the crucial question that now arises for

determination is whether the failure on the part of the prosecution

in complying with the requirement of Section 50 of the Act, which

has ultimately vitiated the said personal search and recovery of

only mobile phones and the cash, would entitle the accused to

claim for acquittal in this case or not on that ground. The answer

should be emphatic no.

17) It is significant to note here that the contraband which is the

incriminating material i.e. the ganja was not recovered from the

accused during the personal search made on them. Only three

mobile phones and cash was recovered from the individual accused

during the personal search made under Section 50 of the Act. The

contraband i.e. ganja was recovered during the search of the van.

MOs.25 to 48 ganja bags were found in the van in a separate rack

concealed in the cabin of the van. Therefore, it is now well-settled

law that when the contraband which is the incriminating material

was not recovered during the personal search of the accused made

under Section 50 of the Act and the contraband was recovered from

the vehicle, then, even though, the personal search made is found

to be not valid under law in view of improper compliance of Section

50 of the Act, it would not make the seizure of the contraband

made from the vehicle bad in law or make the finding of conviction

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and the punishment imposed based on the recovery of contraband

made from the vehicle bad in law and the same would not be

vitiated. The accused are not entitled to acquittal on that ground.

18) Legal position in this regard is also very well settled. The

Constitution Bench of the Apex Court in the case of Baldev Singh2,

in para.57 of its judgment, clearly held that the conviction may not

be based "only" on the basis of possession of an illicit article

recovered from personal search in violation of the requirements

under Section 50 of the Act, but if there be other evidence on

record, such material can certainly be looked into. In the case of

Madan Lal v. State of H.P7, the Apex Court held that a bare

reading of Section 50 shows that it only applies in case of personal

search of a person. It does not extend to search of a vehicle or a

container or a bag or premises. The language of Section 50 is

implicitly clear that the search has to be in relation to a person as

contrasted to search of premises, vehicles or articles. That being

the position, the contention regarding non-compliance of Section

50 of the Act is without any substance. The said judgment is again

followed by the Apex Court in Ajmer Singh v. State of Haryana8.

7 (2003) 7 SCC 465 8 (2010) 3 SCC 746

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19) Again, the question when both a personal search of the

accused and also search of a vehicle was made, and when the

contraband that was recovered and seized was found only in the

vehicle and not found when personal search was made, whether

non-compliance of legal requirements of Section 50 would vitiate

the conviction recorded based on the material seized in the vehicle

directly fell for consideration before the Three-Judge Bench of the

Apex Court in the case of State of Punjab v. Baljinder Singh9.

The following question was framed by the Apex Court at para.8 of

the said Judgment:

"8. The question that arises in the matter is:

If a person found to be in possession of a vehicle containing contraband is subjected to personal search, which may not be in conformity with the requirements under Section 50 of the Act; but the search of the vehicle results in recovery of contraband material, which stands proved independently;

would the accused be entitled to benefit of acquittal on the ground of non-compliance of Section 50 of the Act even in respect of material found in the search of the vehicle?"

20) Answering the question, with reference to the above referred

two judgments in Madan Lal7 and Ajmer Singh8 and also the

Constitution Bench judgment of the Baldev Singh2, the Three-

Judge Bench of the Apex Court held at para.17 as follows:

9 (2019) 10 SCC 473

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"17. In the instant case, the personal search of the accused did not result in recovery of any contraband. Even if there was any such recovery, the same could not be relied upon for want of compliance of the requirements of Section 50 of the Act. But, the search of the vehicle and recovery of contraband pursuant thereto having stood proved, merely because there was non-compliance of Section 50 of the Act as far as "personal search" was concerned, no benefit can be extended so as to invalidate the effect of recovery from the search of the vehicle. Any such idea would be directly in the teeth of conclusion made in the Constitution Bench of the Apex Court in the case of Baldev Singh."

21) Thus, from the dictum laid down in the above judgment of

the Three-Judge Bench of the Apex Court, the legal position is now

made clear that when there was both a personal search of accused

and also a search of the vehicle simultaneously, and when the

contraband/incriminating material is not found during the

personal search of the accused, and when the contraband was

found at the time of search of the vehicle, the fact that there was

no proper compliance of legal requirements of Section 50 relating to

personal search of the accused would not invalidate and make the

recovery of the contraband made during the search of the vehicle

illegal. It will also not vitiate the finding of conviction recorded

based on the recovery of contraband made from the vehicle.

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22) Although, a Two-Bench of the Apex Court in the case of Dilip

v. State of M.P10, has taken a different view and held that when

search of both person and the vehicle was made and when

contraband was found only in the vehicle and not found during the

search of a person, even then, when it is found that personal

search is not in accordance with Section 50 of the Act that the

accused is entitled for acquittal, the Three-Judge Bench of the

Apex Court in a subsequent judgment struck a discordant note

and did not accept the said proposition of law. In the case of

Baljinder Singh9, the Three-Judge Bench of the Apex Court held

that the said proposition of law is not correct and it is opposed to

the law laid down by the Constitution Bench of the Apex Court in

Baldev Singh2 case and other judgments. It is held at para.18 of

the judgment by the Three-Judge Bench of the Apex Court as

follows:

"18. The decision of this Court in Dilip case [(2007) 1 SCC 450], however, has not adverted to the distinction as discussed hereinabove and proceeded to confer advantage upon the accused even in respect of recovery from the vehicle, on the ground that the requirements of Section 50 relating to personal search were not complied with. In our view, the decision of this Court in said judgment in Dilip case is not correct and is opposed to the law laid down by this Court in Baldev Singh [(1999) 6 SCC 172] and other judgments."

10 (2007) 1 SCC 450

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23) Therefore, in view of the law settled by the Three-Judge

Bench of the Apex Court in this regard in Baljinder Singh9 case,

the contention of the learned counsel for the appellants that as

personal search of the three accused and recovery of the mobile

phones and the cash is found to be not in accordance with Section

50 of the Act, that it would vitiate the recovery of contraband from

the van also and consequently, the finding of conviction recorded

on the basis of the said recovery of contraband from the van also

stands vitiated and that the appellants are entitled to acquittal

cannot be countenanced and the same is liable to be rejected.

24) In the instant case, the fact that the appellants - accused

Nos.1, 3 and 4, tried to escape after seeing the police and that they

were apprehended by the police and that, thereafter, the van was

searched in the presence of the mediators i.e. PW.1 and the

Tahsildar - PW.2, by PW.4 and that at that time the contraband i.e.

ganja was found in the vehicle and the same was recovered from

their possession in the van in the presence of PW.1 and PW.2 and

that the samples were drawn and identity slips were affixed which

were also signed by the acused-A-1, A-3 and A-4 along with the

mediator - PW.1, PW.2 Tahsildar and that they were subsequently

sent for chemical analysis and the Analyst opined that the same is

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ganja as per Ex.P.10 Analyst Report, are all proved by the

prosecution with convincing and acceptable legal evidence.

25) PW.1, who is the mediator, is a V.R.O., and PW.2 is a

Tahsildar, who are official witnesses, who clearly testified to the

fact that the said contraband was seized from the possession of the

accused in the van at their instance and that the samples were

drawn in their presence etc. Both PW.1 and PW.2 also identified

the accused - A-1, A-3 and A-4 in the Court in their evidence.

They have absolutely no necessity or any reason to give any false

evidence against the accused and to falsely implicate them in the

case. Nothing was elicited in their cross-examination also to

discredit their testimony given regarding the manner in which the

accused were apprehended and regarding recovery of the ganja

from them in the van at their instance. The accused also did not

deny their signatures on the identity slips and also on the two

mediator reports - Exs.P.2 and P.3, as can be seen from the cross-

examination of all the prosecution witnesses. Therefore, the

evidence of PW.1, PW.2 and PW.4 the Sub-Inspector of Police is

trustworthy and inspires full confidence in the mind of the Court

regarding the veracity of the testimony given by them. Therefore,

the recovery of contraband from the possession of the accused in

the van at their instance is proved with acceptable legal evidence

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and it is fully established in this case. So, even though the

recovery of mobile phones and cash made during the personal

search of the accused is now vitiated on account of non-compliance

with Section 50 of the Act, it does not in any way affect the

recovery of contraband/ganja from the possession of the accused

in the van, which is being illegally transported in the said van by

the appellants.

26) Even in the recent judgment of the Apex Court in the case of

Kallu Khan v. State of Rajasthan11, which was also a case where

after obtaining consent from the accused both search of his body

as well as motorcycle was made. During the personal search, no

incriminating substance was recovered from him. But, during the

search of motorcycle, a polythene bag beneath the seat of the

motorcycle was found, which contained brown substance which is

a smack. Similar contention was raised that as there was a

personal search and as there was no proper compliance of Section

50 of the Act, that recovery of contraband from the vehicle also

cannot be accepted. The Apex Court repelled the said contention

and held at para.15 of the judgment as follows:

11 2021 SCC OnLine SC 1223

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Crl.A.Nos.125, 488 and 543 of 2018

"In the present case, in the search of motor cycle at public place, the seizure of contraband was made, as revealed. Therefore, compliance of Section 50 does not attract in the present case. It is settled in the case of Vijaysinh (supra) that in the case of personal search only, the provisions of Section 50 of the Act is required to be complied with but not in the case of vehicle as in the present case...."

27) The next contention raised by the learned counsel for the

appellants is regarding non-compliance of Section 52-A of the Act.

He would contend that it is held by the Apex Court in the case of

Union of India v. Mohanlal12 that as per Section 52-A of the Act

upon seizure of the contraband the same has to be forwarded

either to the officer in-charge of the nearest police station or to the

officer empowered under Section 53, who shall prepare an

inventory and then should make an application to the Magistrate

(a) to certify the correctness of the inventory; (b) to certify

photographs of such drugs or substances taken before the

Magistrate as true; and (c) to draw representative samples in the

presence of the Magistrate who has to certify the correctness of the

list of samples so drawn and as the said procedure is not followed,

as held by the Apex Court in the above Mohanlal12 case, that the

accused are entitled for acquittal.

12 (2016) 3 SCC 379

CMR,J.

Crl.A.Nos.125, 488 and 543 of 2018

28) The same contention was raised by placing reliance on the

above Mohanlal12 case before the Apex Court in the above Kallu

Khan11 case. The Apex Court at para.13 of the judgment held as

follows:

"At this state, the argument advanced by the appellant regarding nonproduction of contraband in the court due to which benefit of doubt ought to be given to accused, is required to be adverted to. In the case of State of Rajasthan vs. Sahi Ram [(2019) 10 SCC 649], this Court held that when the seizure of material is proved on record and is not even disputed, the entire contraband material need not be placed on record. It is not a case in which the appellant has proved beyond reasonable doubt that while sending the samples for forensic tests, seals were not intact or the procedure has been materially not followed by protecting the seized substance or was not stored properly, as specified in the case of Mohan Lal (supra) in which case the directions were given to be followed on administrative side. However, in the facts of the case, the said judgment is not of any help to appellant."

29) In the instant case also, it is not the case of the accused that

the prosecution has meddled with the samples or that the seals

were not intact or that the procedure has been not followed in

protecting the seized substance or was not stored properly.

Therefore, the judgment of Mohanlal12 case is of not of any avail to

the case of the appellants. Moreover, after dealing with the

procedure contemplated under Section 52-A of the Act, the Apex

Court has only given certain directions on administrative side for

CMR,J.

Crl.A.Nos.125, 488 and 543 of 2018

proper preservation of the seized contraband in the Mohanlal12

case.

30) The only contention raised by the appellants is that it is

shown in the mediators report that the samples were drawn in

polythene cover and identity slips are affixed on it and the samples,

which are now produced in the Court are in brown cover paper.

This has been properly explained by the trial Court in its judgment

at page.17 of its judgment and it is held as follows:

"....The learned counsel for the accused contended that, the identity slips affixed on sample are in brown paper packets as such the samples lifted under Ex.P.3 mahazar and the samples produced before the Court are not one and the same. There is no force in the contention of the accused, because at the time of arguments, the learned Addl.P.P. opened two samples in the open court and it is found that, the samples are packed in polythene covers and then wrapped with brown paper covers and identity slips affixed thereon. Further, the learned counsel for the accused did not dispute that the signatures on identity slips affixed on M.Os.1 to 24 and Ex.P.3 mahazar are not that of accused. So, the samples lifted at the spot in the presence of P.W.1 and PW.2 by PW.4 and M.Os.1 to 24 that are produced before the Court are one and the same...."

31) Thus, the trial Court has given cogent reasons rejecting the

said contention of the accused and a clear finding was recorded

that the samples that were taken at the time of seizure and the

samples produced in the Court are one and the same and this

Court do not find any infirmity in the said finding.

CMR,J.

Crl.A.Nos.125, 488 and 543 of 2018

32) In Than Kunwar v. State of Haryana 13 also the Apex Court

held that if seizure is otherwise proved and the samples taken from

and out of the contraband material were kept intact, report of

forensic experts shows potency, nature and quality of contraband

material, essential ingredients constituting offence are made out,

that non-production of contraband in the Court is not fatal.

33) It is lastly contended that the other mediator Syama

Sundaram was not examined in this case. His non-examination is

also not fatal to the case of the prosecution, as the arrest of the

accused along with contraband and seizure of the same from their

possession in the van is proved by the independent evidence of the

two officials witnesses - PW.1 and PW.2 and also the evidence of

PW.4, who is the police officer, which is found to be trustworthy

and convincing, as discussed supra.

34) The judgment of the Calcutta High Court in the case of

Munna Nai v. The State14 relied on by the learned counsel for the

appellants is also not of any avail to the case of the appellants.

That was a case where as the samples were not taken in the

presence of Magistrate and as the independent witnesses for

13 (2020) 5 SCC 260 14 1997 Cri.L.J. 4553

CMR,J.

Crl.A.Nos.125, 488 and 543 of 2018

seizure were not examined, the Court held that non-compliance of

provisions of Section 52-A of the Act vitiated the search and

seizure. In the instant case, the search and seizure was made in

the presence of two official witnesses - PWs.1 and 2 and they were

examined in this case.

35) The prosecution has proved with acceptable legal evidence

beyond all reasonable doubt that A-1, A-3 and A-4 have been in

illegal possession of the contraband and transporting the same

illegally in a van in contravention of the provisions of the Act and

thereby committed an offence punishable under Section 8(c) r/w.

]Section 20(b)(ii)(C) of the Act.

36) Therefore, none of the grounds urged by the appellants to

assail the impugned judgment of conviction and sentence is

tenable. The impugned judgment of conviction of the trial Court is

based on proper appreciation of evidence on record and also the

legal position. So, it warrants no interference in these appeals. It

is perfectly sustainable under law. Therefore, the appeals fail.

37) Resultantly, these Criminal Appeals are dismissed confirming

the judgment of conviction and sentence, dated 20.12.2017, passed

in NDPS Sessions Case No.138 of 2016 on the file of the learned

Special Sessions Judge for trial of the cases under the Narcotic

CMR,J.

Crl.A.Nos.125, 488 and 543 of 2018

Drugs and Psychotropic Substances Act, 1985-cum-I Additional

Sessions Judge, East Godavari District at Rajamahendravaram.

As accused No.1 is on bail, he shall surrender before the trial Court

forthwith to serve the remaining sentence.

As a sequel, miscellaneous applications, pending if any, shall

also stand closed.

________________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date:15-12-2022.

Note:

L.R. copy to be marked.

B/O cs

CMR,J.

Crl.A.Nos.125, 488 and 543 of 2018

*HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

+ Criminal Appeal Nos.125, 488 and 543 of 2018

% Dated 15-12-2022 Crl.Appeal No.:125 of 2018:

# Kola Sathibabu (A-1) ..... Appellant Vs.

$ The State of Andhra Pradesh rep. by its Public Prosecutor, High Court of A.P.

.....Respondent ! Counsel for the Appellants :

Sri K. Sri Chandrasekhar Ilapakurti;

Sri Challa Venkat; and Sri G.Venkat Reddy, Learned counsel.

^ Counsel for respondent/State: Sri Sravan Kumar Naidana, learned Addl.Public Prosecutor

<GIST:

> HEAD NOTE:

? Cases referred:

1. (2014) 5 SCC 345

2. (1999) 6 SCC 172

3. (2011) 1 SCC 609

4. (2000) 1 SCC 707

5. (2004) 2 SCC 56

6. (2004) 2 SCC 608

7. (2003) 7 SCC 465

8. (2010) 3 SCC 746

9. (2019) 10 SCC 473

10. (2007) 1 SCC 450

11. 2021 SCC OnLine SC 1223

12. (2016) 3 SCC 379

13. (2020) 5 SCC 260

14. 1997 Cri.L.J. 4553

CMR,J.

Crl.A.Nos.125, 488 and 543 of 2018

IN THE HIGH COURT OF THE STATE OF ANDHRA PRADESH

Criminal Appeal Nos.125, 488 and 543 of 2018 Crl.Appeal No.:125 of 2018:

Kola Sathibabu (A-1) ..... Appellant Vs.

The State of Andhra Pradesh rep. by its Public Prosecutor, High Court of A.P.

.....Respondent

COMMON JUDGMENT PRONOUNCED ON: 15-12-2022

HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

1. Whether Reporters of Local newspapers -- may be allowed to see the Judgments?

2. Whether the copies of judgment may be -Yes- marked to Law Reporters/Journals

3. Whether Their Ladyship/Lordship wish to see -Yes- the fair copy of the Judgment?

JUSTICE CHEEKATI MANAVENDRANATH ROY