Andhra Pradesh High Court - Amravati
The State Of A.P. Rep. By The vs Siddavarapu Venkata Rao on 18 December, 2023
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CRIMINAL APPEAL No.56 OF 2009
Between:
1) Shaik Meerabi (died).
2) Shaik Khasimbi, W/o Nagoor Saheb,
Aged 51 years, R/o Gudipudi Village,
Kanigiri Mandal,Prakasam Dsitrict.
.... Appellants/A.1 and A.2.
Versus
The State of Andhra Pradesh, rep. by its
Public Prosecutor, High Court of Andhra Pradesh.
... Respondent/Complainant.
DATE OF JUDGMENT PRONOUNCED : 18.12.2023
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
1. Whether Reporters of Local Newspapers
may be allowed to see the Judgment? Yes/No
2. Whether the copy of Judgment may be
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wish to see the
Fair copy of the Judgment? Yes/No
___________________________
A.V.RAVINDRA BABU, J
2
* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ CRIMINAL APPEAL No.56 OF 2009
% 18.12.2023
# Between:
1) Shaik Meerabi (died).
2) Shaik Khasimbi, W/o Nagoor Saheb,
Aged 51 years, R/o Gudipudi Village,
Kanigiri Mandal,Prakasam Dsitrict.
.... Appellants/A.1 and A.2.
Versus
The State of Andhra Pradesh, rep. by its
Public Prosecutor, High Court of Andhra Pradesh.
... Respondent/Complainant.
! Counsel for the Appellants : Sri Siva Sankara Rao Borra.
^ Counsel for the Respondent : Public Prosecutor
< Gist:
> Head Note:
? Cases referred:
This Court made the following:
3
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL APPEAL NO.56 OF 2009
ORDER:
-
Challenge in this Criminal Appeal is to the judgment in
Sessions Case No.42 of 2007, dated 19.01.2009, on the file of
Special Judge for NDPS Cases-cum-I Additional District &
Sessions Judge, Ongole ("Special Judge" for short), whereunder
the learned Special Judge found the accused Nos.1 and 2 guilty
of the charge under Section 20(b)(ii)(B) r/w 8(c) of the Narcotic
Drugs and Psychotropic Substance Act, 1985 ("NDPS Act" for
short), convicted them under Section 235(2) of the Code of
Criminal Procedure) ("Cr.P.C." for short) and after questioning
them about the quantum of sentence, sentenced A.1 to undergo
rigorous imprisonment for four years and to pay a fine of
Rs.100/-, in default to suffer simple imprisonment for 15 days
and sentenced A.2 to undergo rigorous imprisonment for two
years and to pay fine of Rs.100/-, in default to suffer simple
imprisonment for 15 days. The appellants herein are no other
than A.1 and A.2 in the aforesaid Sessions Case.
2) The parties to this Criminal Appeal will hereinafter
be referred to as described before the learned Special Judge for
the sake of the convenience.
3) The case of the prosecution, in brief, according to
the charge sheet filed by the Station House Officer, Prohibition &
Excise, Kanigiri, is as follows:
On 18.06.2007 at about 3-30 p.m., Prohibition & Excise
party proceeded to Kanigiri to Podili road to detect the
Prohibition and Excise offences in a Government rented Jeep.
They reached Kasireddy Nagar Bus Stop and found the accused
in the standing position having the polythene gunny bags at
their legs possessing with their right hands. On seeing the
vehicle, they confused themselves. Prohibition & Excise party
stopped the vehicle. When they questioned the accused about
the contents, they replied that it contained Ganja. They did not
reveal the source of Ganja. They revealed that they were
waiting for auto to go to Kanigiri. Then L.W.1-K. Sreenivasulu,
Prohibition & Excise Inspector, asked the passengers present at
to act as mediators and two of them came forward and they are
L.W.7-Ravoori Narayana Reddy and L.W.8-Golla Phani Kumar.
L.W.1 asked the accused whether they wanted any other
Gazetted Officer or Magistrate to search their polythene gunny
bags, for which they replied that they may be searched before
L.W.1 because he is also a Gazetted Officer. Then Prohibition &
Excise party searched the gunny bags of A.1 and A.2 and found
Ganja. The bag of A.1 was weighed as 4.200 kgs. The bag of
A.2 was weighed as 2.300 kgs. Prohibition & Excise Police drawn
sample of 50 grams from each bag and sealed it. They obtained
the signatures of the L.W.7 and L.W.8 on the mediatornama.
L.W.1 arrested the accused after intimating to them about the
grounds of arrest. L.W.6-A. Radha Krishna Murthy, Prohibition
& Excise Sub- Inspector, Kanigiri, registered a case as PR.No.56
of 2007-08 and took up investigation. The accused were sent to
the Court for remand. L.W.9-G. Muralidhar, Prohibition & Excise
Inspector, Kanigiri, sent the samples to the chemical examiner,
who opined that two samples are of Ganja. Hence, the charge
sheet.
4) The learned Special Judge took cognizance of the
case under Section 20(b)(ii)(B) r/w 8(c) of N.D.P.S Act. After
appearance of the accused, copies of case documents were
furnished to them as required under Section 207 of the Cr.P.C.,
and on hearing both sides, a charge under Section 20(b)(ii)(B)
r/w 8(c) of N.D.P.S Act was framed and explained to them in
Telugu, for which they pleaded not guilty and claimed to be
tried.
5) During the course of trial, the prosecution examined
P.W.1 to P.W.5 and got marked Ex.P.1, Ex.P.1(a)&(b),
Ex.P.1(c)&(d), Ex.P.2, Ex.P.3 and Ex.P.2(a) and M.O.1 to M.O.4.
After closure of the evidence of prosecution, the accused were
examined under Section 313 of Cr.P.C. with reference to the
incriminating circumstances appearing in the evidence let in by
the prosecution, for which they denied the same and they did
not let in any evidence.
6) The learned Special Judge on hearing both sides and
on considering the oral as well as the documentary evidence,
found A.1 and A.2 guilty of the charge, convicted and sentenced
them as above. Felt aggrieved of the same, the unsuccessful A.1
and A.2 filed the present appeal.
7) During the course of appeal, A.1 died and the case
against him was abated vide order, dated 14.07.2023. So, the
present appeal is proceeded as against A.2 only.
8) Now, in deciding this Criminal Appeal, the points for
determination are as follows:
(1) Whether the prosecution proved that A.2 was found in
possession of 2.300 kgs. of Ganja on 18.06.2007 at 3-30
p.m., in the manner as alleged by the prosecution?
(2) Whether the judgment of the learned Special Judge,
dated 19.01.2009 in S.C.No.42 of 2007, is sustainable
under law and facts and whether there are any grounds to
interfere with the same?
Point Nos.1 and 2:-
9) P.W.1 was the Prohibition & Excise Inspector. P.W.2
was the then Prohibition & Excise Sub-Inspector. P.W.3 was the
private car driver, who drove one of the vehicles of the
Prohibition & Excise police party to the scene of offence. P.W.4
was the Prohibition & Excise Inspector, Kanigiri, who registered
FIR basing on the mahazarnama. P.W.5 was the Prohibition &
Excise Sub-Inspector, Kavali, who claimed to have participated
in the raid.
10) The testimony of P.W.1, P.W.2 and P.W.5 is that on
18.06.2007 during routine raids conducted to detect Prohibition
and Excise offences, they reached near the bus stop of
Kasireddy Nagar. They noticed A.1 and A.2 each possessing
respective polythene gunny bags in their hands. On seeing
them, the accused tried to escape. They apprehended the
accused and asked about the contents of the bags for which
they revealed that they contained Ganja. Then they requested
passengers present there to act as mediators and two persons
among them viz., R.N. Reddy and E.P. Kumar (L.W.7 and L.W.8)
came forward to act as mediators. Apart from this, P.W.1
intimated to A.1 and A.2 that he is a Gazetted Officer and if they
need any other Gazetted Officer, he will secure their presence
for which the accused replied that they can be searched before
him and there is no need or necessity of another Gazetted
Officer. They conducted search and found 4.200 kgs. of Ganja
in possession of A.1 and 2.300 kgs. of Ganja in possession of
A.2. Samples of 50 grams each were lifted from the respective
bags. M.O.1 is the contraband of A.1 and M.O.2 is sample.
M.O.3 is the contraband of A.2 and M.O.4 is sample. A
mahazarnama was drafted to that effect. Prohibition and Excise
party and mediators signed and accused also put their thumb
impressions. This is the sum and substance of the evidence of
the above said witnesses.
11) Turning to the evidence of P.W.3, he deposed that
he is a Jeep driver and that on 18.06.2007 he along with Excise
Enforcement Police proceeded on patrolling duty and when they
reached near Kasireddi Bus and found A.1 and A.2 who are
carrying polythene gunny bags. They took into custody. A.1 and
A.2 were carrying Ganja. They were brought to Excise police
station and on the report prepared by the Excise Police, he put
his signature. As the witness deposed that after the accused
were brought to the Excise station, he signed in the
mahazarnama, the prosecution cross examined him. He
admitted his signature on Ex.P.1. He denied that L.W.7 was also
present along with him and acted as mediator. He denied that
he is deposing half truth and half false. During cross
examination by the learned defence counsel, he deposed that he
was the driver of the Jeep bearing No.A.P.27-TV-0025 under
hire with Excise Enforcement Squad. He stood as mediator in
the Excise Enforcement Raid cases. He denied that he is a stock
mediator. He denied that nothing was happened in his presence
and he is deposing false.
12) P.W.4 was the Sub-Inspector of Police, who
registered the mediatornama, as PR.No.56/2007-08 and he
claimed that he forwarded the samples to the chemical
examiner.
13) Sri Siva Sankara Rao Borra, learned counsel
appearing for the second appellant, would contend that Ex.P.1
suffers with any amount of falsity. It was narrated in Ex.P.1
that passengers at the bus stop were called to act as mediators
and from among the passengers, two persons came forward to
act as mediators. Now the fact remained is that P.W.3 was not
at all a passenger and he was driving the Excise Jeep carrying
the Excise Squad. It is admitted by him in cross examination.
Though he turned hostile to the case of the prosecution by
deposing that he signed in manazarnama in the police station,
the prosecution on the same day given up the examination of
another mediator viz., Ravoori Narayana Reddy without any
reason, for obvious reasons best known to them. On 10.12.2008
the said Ravoori Narayana Reddy deposed in Sessions Case
No.27 of 2007 as mediator. The prosecution had a chance to
examine him. For obvious reasons, they have given up his
examination. Apart from this, they have stage managed the
thumb impressions of the accused on Ex.P.1 as well as Ex.P.1(a)
and Ex.P.(b). Both A.1 and A.2 were illiterates and rustic
villagers. They were not capable of giving any reply like
Ex.P.1(c) and Ex.P.1(d) giving consent for search before Excise
officials. As P.W.3 testified that everything was prepared in
Excise Station and further the prosecution has given up the
examination of another mediator as the contents of Ex.P.1
suffers with falsity, A.2 is entitled for benefit of doubt. He would
submit that the appeal is liable to allowed.
14) Sri Y. Jagadeeswara Rao, learned counsel,
representing the learned Public Prosecutor, would contend that
though P.W.3 turned hostile to the case of the prosecution, but
he had no necessity to sign mahazarnama, if he really did not
witness the events. There is consistency between the evidence
of P.W.1, P.W.2 and P.W.5. The samples were of Ganja
according to the chemical analyst opinion. Excise police have no
reason to falsely implicate A.2 and another. The learned Special
Judge rightly found the appellant guilty, as such, appeal is liable
to be dismissed.
15) Admittedly, it is a case where there was no personal
search of the present appellant. Under the circumstances,
compliance of Section 50 of the NDPS Act is not necessary.
However, the veracity or otherwise of the prosecution witnesses
is to be tested regarding the genuinity of the case of the
prosecution. As seen from Ex.P.1, what is mentioned therein is
that when the Prohibition & Excise party called the passengers
stood there because the incident was happened at bus stop to
act as mediators, from among them, two persons came forward
and their names were mentioned in the mahazar as Ravoori
Narayana Reddy and Golla Phani Kumar. As evident from the
deposition of P.W.3, he was not at all a passenger stood at the
bus stop. On the other hand, he was a person, who driven the
Jeep of Excise officials at the time of raid. It is quietly evident
from the deposition of P.W.3. The contention of the appellant is
that P.W.3 and another mediator was stock mediators.
16) As seen from the cross examination part of P.W.1,
he deposed that it is true that L.W.7-Ravoori Narayana Reddy
today deposed in Excise Sessions Case No.27 of 2007 as a
mediator. He does not know whether he already deposed in
another Sessions Case No.44 of 2007 on 22.09.2008. The
witness accepted the said fact by going through the deposition
copies shown to him. Apart from this, there is an admission
from P.W.3 that he was a driver of Jeep A.P.27-TV-0025 under
hire with Excise Department Squad in patrolling on that day. He
stood as mediator in Excise Enforcement Squad raid cases. He
denied that he is a stock mediator to the excise cases in all most
all the cases.
17) It is to be noted that by virtue of the above
admissions of P.W.3, it is very clear that he used to stand as
mediator in Excise Enforcement Squad raid cases. As evident
from the admissions made by P.W.1 and P.W.3 in cross
examination P.W.3 and L.W.7-Ravoori Narayana Reddy stood as
mediators in several excise cases. So, they are nothing but
stock mediators.
18) What is disturbing feature in this case is that there is
a falsity in Ex.P.1 as rightly contended on behalf of the appellant
for the reason that as Ex.P.1 narrates that two among the
passengers stood at bus stop came forward as mediators i.e.,
Ravoori Narayana Reddy and E. Phani Kumar (P.W.3), but the
contents of Ex.P.1 that E. Phani Kumar, a passenger proved to
be false by virtue of his evidence. Though P.W.3 testified that
he signed mahazarnama in the police station, the learned
Additional Public Prosecutor as evident from the charge sheet
without any reason whatsoever given up the examination of
Ravoori Narayana Reddy, another mediator. It is not a case that
he was not available for the prosecution to be examined as
witness. On the other hand, on 10.12.2008 he deposed in
another Sessions Case No.27 of 2007 as a mediator. The
prosecution had knowledge that P.W.3 destroyed the case of the
prosecution. If that be the case, it ought to have examined
L.W.7-Ravoori Narayana Reddy. Without any reason, he was
given up by the prosecution. Under the circumstances, I am of
the considered view that it throws any amount of doubt about
the bonafidies of the mahazarnama.
19) It is to be noted that in ordinary course when a
witness turned hostile either deviating from Section 161 of
Cr.P.C. statement or from mahazarnama, Court cannot come to
a conclusion that the investigation is false or the contents of
mahazarnama are false, but, here is a case that Excise police
alleged in Ex.P.1 that mediators were passengers. It proved to
be false for the reason that P.W.3 was no other than the driver
of Jeep of Excise Squad, who participated in the raid. The very
act of the Excise police in showing P.W.3 as a mediator, though
it was alleged in Ex.P.1 that mediators were of the passengers,
throws any amount of doubt about the bonafidies of the case of
the prosecution. The Excise police officials in the raid must
blame themselves for these sordid state of affairs. Hence, on
account of the fact that Excise police officials got mentioned
incorrect facts in Ex.P.1, it is to be held as P.W.3 deviated from
mahazar that he signed mediatornama in the police station.
When the mahazar was signed in the police station, it goes to
the very root of the case.
20) It is to be noted that unless there is a personal
search of the accused in view of Section 50 of the NDPS Act,
there is no need or necessity to comply Section 50 of the Act by
requisitioning services by Gazetted Officer or by taking the
accused to the Gazetted Officer. Here the Excise police claimed
to have complied even Section 50 of the Act. The Gazetted
Officer as contemplated under Section 50 of the Act should be
independent one unconcerned with the investigation. The very
claim of P.W.1 that he introduced himself as a Gazetted Officer
before accused and gave option to be searched before another
Gazetted Officer for which A.1 and A.2 gave their consent to be
searched before him is not at all bonafide. Coupled with the
falsity as mentioned in Ex.P.1, this act of P.W.1 that he can as
well act as a Gazetted Officer is nothing but violating Section 50
of the Act. This type of attitude on the part of P.W.1 is to be
viewed with an eye of suspicion.
21) Having regard to the above, I am of the considered
view that the very case of the prosecution as projected in Ex.P.1
is highly suspicious. The learned Special Judge did not notice the
fact that according to Ex.P.1, P.W.3 was cited as a passenger
who stood among the persons at the bus stop which proved to
be false. Having regard to the overall facts and circumstances, I
am of the considered view that the learned Special Judge did not
notice to the fact that even Ravoori Narayana Reddy was a stock
mediator who was given up by the prosecution without
furnishing any reason though P.W.3 turned hostile. The evidence
on record warrants the Court to extend the benefit of doubt
against the accused. The evidence on record is not at all
convincing so as to sustain a conviction against the accused. In
my considered view, the learned Special Judge on an erroneous
appreciation of the evidence recorded an order of conviction
which is liable to be interfered with.
22) In the result, the Criminal Appeal is allowed, setting
aside the judgment in Sessions Case No.42 of 2007, dated
19.01.2009, on the file of Special Judge for NDPS Cases-cum-I
Additional District & Sessions Judge, Ongole, insofar as second
appellant/A.2 is concerned, thereby she shall stand acquitted of
the charge under Section 20(b)(ii)(B) r/w 8(c) of the Narcotic
Drugs and Psychotropic Substance Act, 1985. The fine amount,
if any, paid by her shall be refunded to her after appeal time is
over.
23) Registry is directed to forward a copy of this
judgment along with record to the Court below on or before
25.12.2023.
Consequently, miscellaneous applications pending, if any,
shall stand closed.
________________________
JUSTICE A.V. RAVINDRA BABU
Dt. 18.12.2023.
Note: LR copy be marked.
PGR
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRL. APPEAL NO.56 OF 2009
Note:
Registry is directed to send copy of the judgment
along with original records to the Court below
on or before 25.12.2023.
L.R. copy be marked.
Date: 18.12.2023
PGR
