Bosaga Suryakanth Suresh vs The State Of A.P.
2023 Latest Caselaw 1246 AP

      HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
                        ****

CRIMINAL APPEAL No.929 OF 2010 Between:

Bosaga Suryakanth @ Suresh, S/o Amrutha Rao, Aged 25 years, R/o Nhosaga Village, Bhasava Kalyanam Taluk, Bheedar District, Karnataka State. .... Appellant/Accused.

Versus

The State of Andhra Pradesh, rep. by the Public Prosecutor, High Court of Andhra Pradesh.

... Respondent.

DATE OF ORDER PRONOUNCED          :       03.03.2023

SUBMITTED FOR APPROVAL:


        HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
1. Whether Reporters of Local Newspapers
   may be allowed to see the Order?                    Yes/No
2. Whether the copy of Order may be
   marked to Law Reporters/Journals?                   Yes/No

3. Whether His Lordship wish to see the
   Fair copy of the order?                             Yes/No




                            ___________________________
                                A.V.RAVINDRA BABU, J





       * HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

             + CRIMINAL APPEAL No.929 OF 2010


                         % 03.03.2023
# Between:

Bosaga Suryakanth @ Suresh, S/o Amrutha Rao, Aged 25 years, R/o Nhosaga Village, Bhasava Kalyanam Taluk, Bheedar District, Karnataka State. .... Appellant/Accused.

Versus

The State of Andhra Pradesh, rep. by the Public Prosecutor, High Court of Andhra Pradesh.

... Respondent.

! Counsel for the Appellant :

Sri Saranu Phani Teja, representing Sri Venkateswara Rao Gudapati.

^ Counsel for the Respondent : Public Prosecutor < Gist:

> Head Note:

? Cases referred:

2001(2) ALD (Crl.) 928 (AP) (1999) 6 SCC 172 2004(14) ILD 271 AIR 2004 Supreme Court 2491 2014(1) ALD (Crl.) 909 (SC) 2003 (11) ILD 491 SC

This Court made the following:

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

CRIMINAL APPEAL NO.929 OF 2010

JUDGMENT:-

This Criminal Appeal is filed by the appellant, who was the

accused in NDPS Sessions Case No.8 of 2005, on the file of the

Special Sessions Judge for Trial of the cases under the Narcotic

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

Sessions Judge, East Godavari District, Rajahmundry

(hereinafter will be referred to as "Special Judge"), challenging

the judgment, dated 02.07.2010, where under the learned

Special Judge, found the accused guilty of the offence under

Section 8(c) r/w 20(b)(ii)(C) of Narcotic Drugs and Psychotropic

Substance Act, 1985 ("N.D.P.S. Act" for short) and convicted

him under Section 235(2) of the Code of Criminal Procedure

Code ("Cr.P.C." for short) and after questioning him about the

quantum of sentence, sentenced him to undergo rigorous

imprisonment for a period of 10 years and to pay a fine of

Rs.1,00,000/- and in default to suffer simple imprisonment for

one year.

2) The parties to this Criminal Appeal will hereinafter

be referred as described before the trial Court for the sake of

convenience.

3) The State, represented by Inspector of Police,

Rajavommangi Circle, East Godavari District, filed charge sheet

in Crime No.10 of 2004 of Rajavommangi Police Station under

Section 8(c) r/w 20(b)(1) of N.D.P.S. Act, 1985 alleging in

substance as follows:

(i) The accused is resident of Bhogasa Village,

Bhasavakalyana Mandapam Taluk, Bheedar District of Karnataka

State. He is a driver of Lorry bearing No.MH 18A 7501. L.W.1-

Kanigiri Chakrapani and L.W.2-Behavara Gavarraju are the

mediators to the occurrence. L.W.3-Bhyrun Abdul Davoodh is

the Kirana shop owner, who weighed Ganja packets in the

presence of police and revenue officials. L.W.4-Thatituri

Veerababu is the Photographer. L.W.5-M. Satyananda Rao is the

then Mandal Revenue Officer, Rajavommangi. L.W.6-

C. Satyanandam is the Government Chemical Examiner for

Prohibition and Excise, Kakinada. L.W.7-G. Satyanarayana is the

then Sub-Inspector of Police, Rajavommangi Police Station.

L.W.8-Y. Srinivasa Rao is the then Inspector of Police,

Rajavommangi Police Station.

(ii) On 09.03.2004 at about 11-00 a.m., on receipt of

information regarding the fact that the Ganja loaded lorry driven

by the accused dashed a tree in the outskirts of Sarabhavaram

Village, near Boyapadu-Kakarapadu, the Inspector of Police,

along with Sub-Inspector of Police and the mediators proceeded

to the spot and found the accused with an injury on his

forehead. L.W.8, the Inspector of Police questioned the accused.

Firstly, he gave prevaricating replies and finally disclosed his

identity particulars. He confessed that he purchased 74 packets

of Ganja from an unknown person in between Narsipatnam and

K.D. Peta forest area at the rate of Rs.100/- per Kg and

accordingly he purchased total 430 Kgs. of Ganja for

Rs.43,000/- with a view to sell the same at Thiruchanur for

Rs.1,000/- per Kg. Ganja to get profit to earn money. While, he

is brining 74 packets of Ganja bundles in his lorry bearing

No.MH 18A 7501 from K.D. Peta via Rajavommangi and after

passing Kakarapadu-Boyapadu junction, he failed to control the

vehicle in high speed and dashed a road side Boda tree, as such,

he received minor injury. He also revealed that along with him,

another driver Venkat and one Basaga Govind Ganapath were

present, but they absconded after the accident. The Inspector of

Police recorded the statement of the accused under the cover of

Mahazarnama in the presence of mediators from 1-00 p.m. to

2-00 p.m., on 09.03.2004 and he seized 74 packets of Ganja

bundles under the cover of mediatornama. On 09.03.2004 at

3-00 p.m., the Sub-Inspector of Police, at the instructions of

Inspector of Police, registered the mahazarnama as a case in

Crime No.10 of 2004 under Section 8(c) r/w 20(b)(1) of

N.D.P.S. Act. L.W.8 personally investigated into the case. L.W.3

weighed 74 packets of Ganja and L.W.4 Photographed the Ganja

bundles in the police station. A mahazar was drafted for

weighing of Ganja from 4-00 p.m. to 5-00 p.m. on 09.03.2004.

The Inspector of Police arrested the accused and sent him for

remand. The samples were sent for chemical analysis with a

letter of advice to the Government Chemical Examiner for

Prohibition and Excise, Kakinada, who opined that the samples

are of Ganja. In spite of best efforts, the investigating officer

could not trace the other absconding accused. Hence, the

accused is liable for punishment under Section 8(c) r/w 20(b)(1)

of N.D.P.S. Act.

4) The learned Special Judge took cognizance of the

offence under Section 8(c) r/w 20(b)(ii)(C) of N.D.P.S. Act.

After appearance of the accused and after complying the

necessary formalities under Section 207 of Cr.P.C., by following

the procedure under Section 228 of Cr.P.C., the learned Special

Judge framed charge under Section 8(c) r/w 20(b(ii)(C) of

N.D.P.S Act against the accused, explained to him in Telugu, for

which he pleaded not guilty and claimed to be tried.

5) To bring home the guilt against the accused, the

prosecution, during the course of trial, examined P.W.1 to P.W.6

and got marked Ex.P.1 to Ex.P.8 and the defence counsel during

the cross examination of P.W.6, got marked Ex.D.1 and further

the prosecution got marked M.O.1 to M.O.74. After closure of

the evidence of prosecution, accused was 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 he denied the same and he did not

examine any defence witnesses.

6) The learned Special Judge, on hearing both sides

and on considering the oral as well as documentary evidence,

found the accused guilty of the charge and accordingly,

convicted and sentenced him as above. Aggrieved by the

conviction and sentence, the unsuccessful accused, filed the

present Criminal Appeal, challenging the judgment of the trial

Court.

7) Before framing the point for determination, it is

necessary to make a mention here that according to the

judgment of the trial Court after the cognizance was taken and

after appearance of the accused, he absconded from the process

and later his presence was secured by issuing Non-Bailable

Warrant and accused was in custody during the course of trial.

Apart from this, after filing of the appeal, the accused got the

imprisonment imposed by the trial Court suspended and this

Court in Criminal A.M.P.No.1432 of 2010 ordered to suspend the

sentence of imprisonment imposed against the appellant by

directing his release i.e., executing a bond for Rs.20,000/-

together with two sureties for a like sum each to the satisfaction

of the trial Court.

8) Now, in deciding this Criminal Appeal, the points for

determination are as follows:

(1) Whether the prosecution before the Court below proved that the accused was in possession of 430 Kgs. of Ganja on 09.03.2004 at 11-00 a.m., near Boyapadu- Kakarapadu turning at the outskirts of Sarabhavaram Village in contravention of the provisions of N.D.P.S. Act? (2) Whether the prosecution before the Court below proved the charge against him beyond reasonable doubt? (3) Whether there are any grounds to interfere with the judgment of the learned Special Judge?

POINT NOS.1 TO 3:-

9) Sri Saranu Phani Teja, learned counsel, representing

Sri Venkateswara Rao Gudapati, learned counsel appearing for

the appellant, would contend that without properly appreciating

the evidence, the learned Special Judge went on to convict the

accused. The prosecution did not prove before the Court below

that the accused was the driver of the crime vehicle at the time

of offence in question. The learned Special Judge did not

appreciate the evidence of P.W.1 to P.W.6 properly. The defence

of the accused before the Court below was denial and he

contended that he does not know the Telugu language and the

entire trial was vitiated because he did not understand the

Telugu language. The learned Special Judge did not look into

this aspect. The investigating agency did not follow the search

and seizure in accordance with the provisions of the N.D.P.S.

Act, as such, for non following of the mandatory provisions,

search and seizure was vitiated. The crime vehicle was not

produced before the Court below. The evidence of P.W.6 is that

he served a notice on the accused in Telugu language, but, in

fact, the accused was not capable of understanding the Telugu

language. There are serious irregularities and improbabilities in

the evidence of the prosecution witnesses and in spite of it, the

learned Special Judge proceeded to convict the accused, a such,

the Criminal Appeal is liable to be allowed by setting aside the

judgment of the Special Judge.

10) Sri Y. Jagadeeswara Rao, learned counsel,

representing the learned Public Prosecutor, would contend that

the evidence of P.W.1, the Inspector of Police and revenue

officials is consistent with each other. When the accused was

driving the lorry in which he got loaded Ganja, it met with an

accident and accused received minor injury and on account of

the incident only the facts came into light. The investigating

officer duly lifted samples from each and every bundle on the

date of offence and on the next date in the presence of

mediators and the opinion of chemical analyst is that the

samples were of Ganja. Accused participated in the trial

throughout and though he belonged to Karnataka State, he

knows the Telugu language and the learned Special Judge

recorded cogent reasons to negative the contention of the

defence counsel. The investigating officer followed the

mandatory provisions of the N.D.P.S. Act and the learned

Special Judge did not find favour of the defence of the accused

in this regard. The evidence on record categorically proved that

the accused was in possession of huge quantity of Ganja which

was of commercial quantity and the judgment of the learned

Special Judge was by appreciating the evidence in a proper

perspective, as such, the Criminal Appeal is liable to be

dismissed.

11) P.W.1 before the Court below is one of the

mediators. P.W.2 is the person, who claimed to have weighed

the Ganja in the police station. P.W.3 is a Photographer, who

took photos of the contraband in the police station. P.W.4 is the

then Sub-Inspector of Police, Rajavommangi Police Station.

P.W.6 is the then Tahsildar. P.W.1, P.W.4, P.W.5 and P.W.6 are

the witnesses to the occurrence.

12) The substance of the evidence of P.W.1 is that on

09.03.2004 he, Inspector of Police, Rajavommangi, L.W.2

another mediator and L.W.5 and police staff went to Boyapadu-

Kakarapadu center and they found a lorry which was dashed

against a tree. One person was found there with injury on the

back of his head. He revealed his identity on questioning by the

Inspector of Police and that he purchased Ganja near

Narsipatnam and got the same in the lorry to sell the same and

in the transit accident occurred. He revealed that another person

and lorry driver escaped. He disclosed his name as Suresh and

he is resident of Karnataka State. Number of Lorry is 7501. The

Inspector of Police verified the lorry and found 74 packets in the

cabin of the lorry. The person revealed that there is Ganja in

the packets. He (P.W.1) drafted a mediators report. Ex.P.1 is

the mahazarnama. In Ex.P.1, he, B. Gavarraju, L.W.2 and

L.W.5-M. Satyananda Rao, M.R.O., put their signatures. The

Inspector of Police and accused also signed in Ex.P.1. Witness

identified the accused as the person, who was found with injury

on 09.03.2004. He further testified that accused and contraband

was brought to the station and one Muslim person was called at

3-00 p.m., who weighed the Ganja. The weight of Ganja from

all 74 packets is about 400 Kgs. Police lifted 150 grams of

Ganja from each packet out of 74 packets. He drafted another

mediators‟ report which is Ex.P.2. On 10.03.2004 again he was

called by Inspector of Police at 8-00 a.m. By then, M.R.O. was

there. Samples were taken at the police station into the plastic

cover and they were packed with seals with identity slips.

Signatures of another mediator and M.R.O. were obtained.

Another mediators report is drafted which is Ex.P.3. Witness

deposed that as per Ex.P.2, samples were lifted into two packets

and as per Ex.P.3 samples were lifted from 72 packets. M.O.1

to M.O.74 are sample packets. He can identify the lorry.

Photograph shown to him is of the lorry (witness identified the

lorry in the photograph).

13) Coming to the evidence of P.W.2, he testified the

fact that he is running a Kirana shop. On 09.03.2004 at 4-00

p.m., at request of police, he went to the police station with

scales and weights. He weighed 74 packets available there and

the total weight was of 428 or 430 Kgs. About 150 grams were

lifted as a sample from each packet. Apart from P.W.1 and

police, M.R.O., another person was present and his name is

Suresh. He can identify him. Witness deposed that accused is

like the said Suresh, who was seen by him on 09.03.2004.

14) P.W.3 spoken to the fact that at request of the

police, on 09.03.2004 at 4-00 p.m., he photographed the Ganja

packets. He handed over the photographs and negatives to the

Inspector of Police. Ex.P.4 is the positive photographs.

15) The evidence of P.W.4, the then Sub-Inspector of

Police, is that on 09.03.2004 at 11-00 a.m., he received

information about the lorry accident. He intimated the same to

the Inspector of Police, Rajavommangi. It was learnt that there

was transport of Ganja in the lorry involved in the accident. At

the instructions of Inspector of Police, he secured mediators and

M.R.O. After that Inspector of Police, he and mediators, M.R.O.,

proceeded to the lorry bearing No.MH 18A 7501 and found that

it dashed a tree at Boyapadu-Kakarapadu junction. They found

a person with injuries. He revealed his identity as that of

accused. He gave his confession about the transportation of

Ganja. Mediators report was drafted which is Ex.P.1. They went

to the Rajavommangi Police Station along with lorry, accused

and 74 packets of Ganja. He registered the mahazarnama at

the instructions of Inspector of Police, as a case in Crime No.10

of 2004. Ex.P.5 is the F.I.R. He handed over copy of FIR to

Inspector for investigation. Witness identified the accused as the

person who was present at the lorry.

16) P.W.5 is the then Inspector of Police and his

evidence in substance is that on information about the accident

of lorry, he secured the mediators, P.W.1 and M.R.O and

proceeded to Boyapadu Village and found the lorry in damaged

condition. They found Ganja packets. They found one person at

the lorry, who disclosed his identity as accused. He claimed that

he is the driver of the lorry and one Govind Ganapathi also

joined with him and they purchased the Ganja from some

unknown person. It was of 430 Kgs. and they kept it in 74

packets. After passing Kakarapadu, the lorry dashed the tree

and he received simple injuries. P.W.5 further testified that a

mediators report was drafted in the presence of mediators and

M.R.O. M.R.O. served a notice to the accused before searching

74 packets of Ganja under Ex.P.8. After mahazar, he arrested

the accused and brought the property to the station. The Sub-

Inspector of Police at his instructions registered F.I.R. He

proceeded to the scene of offence, prepared rough sketch, which

is Ex.P.6. He got secured P.W.2 and P.W.3 and got weighed

Ganja and got photographed the Ganja. He lifted 150 grams of

Ganja from two packets on that day under Ex.P.2, mahazar. On

10.03.2004 again he secured mediator and M.R.O. and got lifted

samples 72 in number from 72 packets under Ex.P.3, mahazar.

Later, he forwarded the accused to the Court for remand. He

sent the material objects i.e., seized samples to the chemical

examiner who opined that they are all Ganja. Ex.P.7 is the

chemical analysis report. Ex.P.4 is photograph of the lorry

which was taken at the scene. As the lorry was not in a fit

condition, they did not produce before the Court. Accused was

the person, who was arrested by him on that day.

17) P.W.6, the then M.R.O., spoken to the fact that at

request of Sub-Inspector of Police, he went to the police station

of Rajavommangi. From there he, Inspector of Police, Sub-

Inspector of Police and mediators proceeded to Kakarapadu-

Boyapadu and found a lorry which dashed a tree. Its number is

MH 18A 7501. They found a person near the lorry. He revealed

his identity as that of accused. He claimed that he is the driver

of the said lorry. His confession was recorded under mahahzar.

There were 74 packets in the lorry covered with tarpaulin. They

brought the accused to the police station after Ex.P.1. After he

came back to Rajavommangi again he was called to police

station. A notice was served on the accused asking his consent

to weigh the contraband which is Ex.P.8. Accused signed in

Ex.P.8. All 74 packets were verified and a Kirana merchant

weighed the 74 packets which were of 428 Kgs. of Ganja. Police

lifted 150 grams of Ganja two in number as samples under

Ex.P.2. On the next day also at 8-00 a.m., he was summoned

to the police station and in his presence and in the presence of

mediators, police lifted 72 samples from the rest of 72 packets

under Ex.P.3 mahazar.

18) In the light of the contentions advanced and in the

light of the charge framed, prosecution has to prove two aspects

i.e., one is that the accused was found in possession of 428 Kgs.

of Ganja on 09.03.2004 at Boyapadu-Kakarapadu, in the

manner as alleged and that the police followed the relevant

mandatory provisions of N.D.P.S. Act in detection of the case.

19) Firstly, I would like to proceed to deal with as to

whether the contention of the appellant that the investigating

officer did not follow the relevant procedure as contemplated

under the N.D.P.S. Act is tenable. At the outset, the grounds of

appeal are bereft of necessary details which mandatory

provisions of N.D.P.S. Act are violated at the time of arrest of

the appellant by the investigating agency. However, a perusal

of the judgment of the Court below shows that the accused

raised a contention before the Court below as to non-compliance

of mandatory provisions under Sections 42 and 50 of the

N.D.P.S. Act. In the light of the above, now it becomes

necessary to deal with as to whether compliance of Section 50

of the N.D.P.S. Act is necessary and if so, it is complied by the

investigating officer. For better appreciation, it is pertinent to

refer here Section 50 of the N.D.P.S. Act. It runs as follows:

50. Conditions under which search of persons shall be conducted.--

(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

[(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.]

20) A close perusal of Section 50 of the Act means that

if the arrested person requires that he should be searched

before a Gazetted Officer or a Magistrate, the empowering

officer shall take him to the Gazetted Officer or Magistrate. The

law is well settled with regard to Section 50 of the Act. It has

no application when there is no personal search of the accused.

At this juncture, this Court would like to refer here the well

established legal precedents under Section 50 of the Act.

21) In Bodaband Sundar Singh vs. State of A.P. 1 ,

there was a case where the investigating agency found

contraband in possession of a box and zip bag of the accused.

The trial court recorded conviction against the accused. Then,

the matter went in appeal before the High Court of A.P., at

Hyderabad. The High Court of A.P. referred various decisions

and held that Section 50 of the N.D.P.S. Act would come into

play only in the case of a search of a person as distinguished

from search of any place etc. The High Court of A.P. in arriving

at such a conclusion relied on a decision of the Hon‟ble Supreme

Court in Kaleme Thumba vs. State of Maharashtra and

further the Constitutional Bench decision of the Hon‟ble Supreme

Court in State of Punjab vs. Baladev Singh2. The High Court

of A.P. by following the above said decisions held that the search

of a person indicates search of the body of the person but not

other belongings like hand bags, suitcases, etc., as such when

there is search of a person, then only the procedure

contemplated under Section 50 of the Act has to be resorted to.

2001(2) ALD (Crl.) 928 (AP)

(1999) 6 SCC 172

22) In Saikou Jabbi vs. State of Maharashtra in

Criminal Appeal No.103 of 20033, the Hon‟ble Supreme Court

dealing with Section 50 of the Act and also by relying upon the

earlier decisions in Kaleme Thumba vs. State of Maharashtra

and Baladev Singh (2 supra), held that language of Section 50 is

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

as contrasted to search of premises and is not applicable to

other types of search.

23) The Hon‟ble Supreme Court in State of Haryana v.

Jarnail Singh and others 4 also by following earlier decisions

reiterated that Section 50 of the N.D.P.S. Act did not apply when

the search of a Tanker was conducted because it was not a

personal search.

24) Apart from this, the Hon‟ble Supreme Court in

2014(1) ALD (Crl.) 909 (SC) had an occasion to refer the

Constitutional Bench decision in State of Punjab vs. Baladev

Singh (2 supra) equivalent to AIR 49 SC 2278. The Hon‟ble

Supreme Court extracted the observations in Baladevi Singh's

case (2 supra) as follows:

(1) That when an empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 being taken to the neared

2004 (14) ILD 271

AIR 2004 Supreme Court 2491

Gazetted Officer or to the nearest Magistrate for making the search. However, such information may not necessarily be in writing.

(2) That failure to inform the person concerned about the existence of his right to be searched before a Gazetted officer or a Magistrate would cause prejudice to an accused.

(3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazette officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazette officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act.

25) Therefore, it is very clear that non-following of

Section 50 of the N.D.P.S. Act may not vitiate the trial but would

render the recovery of illicit article suspect and vitiate the

conviction and sentence. Coming to the case on hand, Ganja is

said to be recovered from the vehicle bearing Registration

No.MH 18A 7501, as such, there is no violation of Section 50 of

the Act.

26) When non-compliance of Section 50 of the Act was

raised before the Court below, the learned Special Judge under

impression that compliance is necessary, gave finding that

P.W.6 was no other than a Gazetted Officer belonged to revenue

department and though the notice said to be served by P.W.6

under Ex.P.8 was not found place in Ex.P.1, mahazar, but,

however, there is a strict compliance of Section 50 of the Act

because P.W.6 belonged to a revenue department and he was

M.R.O./Executive Magistrate. While holding so, the learned

Special Judge negatived the contention of the accused. As this

Court already pointed out the settled legal principles with regard

to Section 50 of the Act, is such that it has no application when

there was no personal search of the accused. Hence, absolutely,

this Court is of the considered view that compliance of Section

50 of the Act, in the light of the facts and circumstances, as

referred above, is not at all necessary and the investigating

officer was not supposed to comply it. However, he claimed to

have secured the presence of P.W.6 at the time of search. In

the light of the above, the contention of the appellant that the

search was vitiated on account of the non-compliance of Section

50 of the Act is not tenable.

27) Coming to the contention of the accused that there

was violation of Section 42 of the N.D.P.S. Act, now, I proceed

to deal with the same. Firstly, I would like to deal with as to

whether the compliance of Section 42 of the Act is necessary in

this case and if so it is complied. Section 42 of the Act runs as

follows:

2[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 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:

1[Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made there under, 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.]

28) A close perusal of Section 42 of the Act means that

if the empowered officer has any information out of his personal

knowledge or information given by any person and taken down

in writing about the storage of any narcotic drug or psychotropic

substance in any house, enclosed place or in any conveyance,

he may between sunrise and sunset enter into and search any

building, conveyance or place and seize such contraband. The

proviso of Section 42 reveals that such search can be conducted

between sunset and sunrise. When Section 42(1) contemplates

search during day time, the proviso contemplates search during

night time. According to Section 42(2) of the Act 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 72 hours send a copy thereof to his immediate

official superior.

29) Now, coming to the case on hand, it is not the case

of the prosecution that the investigating officer received any

information given by any person and taken down in writing that

Ganja was being transported by any person. On the other hand,

the evidence of P.W.4, the Sub-Inspector of Police and P.W.5,

the Inspector of Police, coupled with the contents of Ex.P.1

means that basically the police party received information as to

the fact that a lorry met with an accident and there appears to

be some Ganja in the lorry. This fact was fortified for the reason

that police also included Section 279 of I.P.C. in the F.I.R. and

charge sheet. Therefore, having got the information about the

fact that a lorry met with an accident, but with information that

there was Ganja in the lorry, police party claimed to have

proceeded to the place of accident. So, it is not a case where

the investigating officer had received any specific information

that in a particular lorry, Ganja was being transported from one

place to another. During the course of cross examination of

P.W.4 and P.W.5, they were not at all cross examined as to

mode of information received by the investigating officer and as

to whether it was specific to comply the mandates of Section 42

of the Act. Absolutely, there was no cross examination regarding

the above aspects. The facts and circumstances are such that

the investigating officer had no specific information about the

transportation of Ganja in a particular mode and that the

information was given by any person in writing, etc. Even

otherwise, this Court is of the considered view that in the light of

the peculiar facts and circumstances, Section 43 of the N.D.P.S.

Act has application to the present situation.

30) Section 43 of the N.D.P.S. Act runs as follows:

1[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.]

31) A close perusal of Sections 42 and 43 of the N.D.P.S

Act, discloses that they are distinct and separate. Section 42 of

the Act prescribed a specific procedure if there was specific

information about the fact that drugs or psychotropic substances

or controlled substances in respect of which an offence under

the Act has been committed is kept or concealed in any building,

conveyance or enclosed place. In such circumstances, a search

is contemplated between sunrise and sunset subject to the

procedure therein. It provides further search between sunset

and sunrise by recording the grounds of plea. Coming to Section

43 of the Act, it contemplates power of seizure and arrest in

public place by any officer contemplated in Section 42.

Therefore, Section 43 refers to the power of seizure and arrest

in public place by the officers mentioned in Section 42.

Nowhere it is provided in Section 43 of the Act that the

procedure contemplated under Section 42 has to be followed.

32) Apart from this, the Hon‟ble Supreme Court in

Jarnail Singh's case (supra) clearly held that "Section 42 and 43

contemplate two different situations. Section 42 contemplates

entry into and search of any building, conveyance or enclosed

place, while Section 43 contemplates a seizure made in any

public place or in transit. If seizure is made under Section 42

between sunset and sunrise, the requirement of the proviso

thereto has to be complied with. There is no such proviso in

Section 43 of the Act and, therefore, if a pubic conveyance is

searched in a public place, the Officer making the search is not

required to record his satisfaction as contemplated by the

proviso to Section 42 of the NDPS Act for searching the vehicle

between sunset and the sunrise. In the instant case, the tanker

was moving on the public highway when it was stopped and

searched. Section 43, therefore, clearly applied to the facts of

the case. Thus there was no requirement of the Officer

conducting the search to record the grounds of his belief as

contemplated by the proviso to Section 42. More so, when

Superintendent of Police was also a member of the searching

party."

33) While holding so, the Hon‟ble Supreme Court

reversed the judgment of Punjab and Haryana High Court and

restored the conviction imposed against the respondents by the

learned Special Judge.

34) There is no dispute that the place of recovery of the

Ganja was from the lorry and it was found in the forest area by

the side of road after it met with an accident. So, the place of

recovery was a public place. Keeping in view, this Court is of

the considered view that compliance of Section 42 of the

N.D.P.S. Act is not at all necessary in the case on hand and the

learned Special Judge rightly negatived the contention of the

accused before the Court below.

35) Now I proceed to deal with as to whether the

evidence adduced by the prosecution before the Court below

regarding the manner in which they claimed to have recovered

the Ganja is convincing or not. The accused agitated before the

Court below that he was not the driver of the vehicle in

question. As seen from Ex.P.1, the case of the prosecution is

that the accused along with another driver and another person

brought the Ganja and the vehicle when the accused was driving

met with an accident and other two persons absconded and he

received injuries and was there by the side of the vehicle. The

accused got cross examined P.W.6, the investigating officer. The

accused got made certain suggestions to P.W.6 which he

admitted. In cross examination, P.W.6 deposed that "it is true

that I got issued a telegram to the owner about the fact that the

accused was caught when the lorry which was transporting

Ganja met with an accident." He deposed further that on

verification of the records, he could know the name of the

owner. He did not examine the lorry owner. As per his

investigation, the accused was the driver of the lorry which met

with an accident. He denied that they did not go to the alleged

scene of offence on 09.03.2004 and accused was not found at

the lorry with injuries and the accused has nothing to do with

the lorry as alleged. The similar suggestions were also put forth

before P.W.1 and P.W.5, the Sub-Inspector of Police and they

denied the same. The defence of the accused was that he was

not at all present at the scene of offence and he did not receive

any injuries and he was implicated falsely. If that be the case, it

is not understandable as to how accused got suggested to P.W.6

that he intimated to the owner of the vehicle that accused while

driving the vehicle by transporting the Ganja met with an

accident. In my considered view, the evidence of P.W.1, P.W.4,

P.W.5 and P.W.6 as to the presence of the accused with minor

injuries by the side of lorry bearing Registration No.MH 18A

7501 was fully established by the prosecution. Under the

circumstances, the contention of the accused that he was not

the driver of the vehicle in question is not tenable.

36) It is a fact that during the course of trial, the vehicle

was not produced before the learned Special Judge. According

to the evidence of P.W.6, the investigating officer, he could

ascertain the name of the owner of the vehicle. It is a fact that

he did not file C-book and other records of the lorry into the

Court and even he did not examine the lorry owner. Certain

provisions of N.D.P.S. Act contemplates the confiscation of

goods used for concealing illicit drugs or substance and in the

light of the facts and circumstances, the non-production of the

lorry before the Court below cannot be taken as a circumstance

to doubt the veracity of the prosecution case.

37) According to the case of the prosecution, the

accused belonged to Karnataka State. The contention of the

appellant is that he does not know Telugu language and he

knows only Kannada language and taking advantage of the

same, his signatures were obtained, as such, entire seizure was

vitiated. Coming to the evidence of P.W.1, the mediator, in cross

examination he deposed that accused does not know Telugu

language and Hindi language and he knows Kannada language.

He (P.W.1) knows Kannada language. He further deposed that

the Inspector of Police questioned the accused in Telugu

language. Witness adds that in partly he knows Kannada and

the accused gave answers in Telugu partly. Accused signed in

Ex.P.1 in English. The answers that were elicited from the mouth

of P.W.1 reveal that accused know Telugu language. Coming to

the evidence of P.W.4, the Sub-Inspector of Police, he was not

cross examined as to whether the accused know the Telugu

language or not and that he knows only Kannada language.

Coming to the evidence of P.W.5, the investigating officer, he

denied that taking advantage of the fact that the accused had no

knowledge about Telugu language, he obtained his signatures

on all papers by using force.

38) As evident from the record of the Court below, the

accused understood Telugu language at the time of framing of

charges and also at the time of answering the questions that

were put to him under Section 313 of Cr.P.C. examination. In

Ex.P.8, the accused signed in English. He also signed in

mediators report in English. He answered the charge in Telugu

and also the examination under Section 313 of Cr.P.C. in

Telugu, but signed in Hindi language. So, all these go to show

that the accused could understand Telugu language. In my

considered view, the learned Special Judge rightly dealt with this

contention and rightly negatived the contention of the accused.

The contention of the appellant that the search and seizure was

vitiated, as the accused does not know the Telugu language is

not at all tenable.

39) It is a case where according to the case of the

prosecution the police party in the presence of P.W.1 and P.W.6

found 74 packets of Ganja in the vehicle in question. Ex.P.1 was

the mediatornama in this regard. On the same day, after

bringing the property to the police station concerned, in the

presence of P.W.1 and P.W.6, P.W.5 lifted two samples from two

packets for the purpose of chemical analysis, but on the next

day, i.e., on 10.03.2004 he again secured the presence of P.W.1

and P.W.6 and lifted 72 samples from other 72 packets. The

evidence on record goes to show that earlier i.e., on 09.03.2004

the investigating officer might be under the impression that

taking two samples from the Ganja may be sufficient, but on

10.03.2004 he could lift other 72 samples from the rest of 72

packets. This fact is deposed by P.W.1, P.W.5 and P.W.6

categorically. So, mistakenly the investigating officer could

obtain only two samples from two packets on 09.03.2004 and

realizing the mistake, on the next day he lifted 72 samples from

the rest of the packets. This fact is quietly consistent by virtue

of the evidence of P.W.1, P.W.5 and P.W.6 coupled with Ex.P.1

to Ex.P.3. Hence, non-lifting of 74 samples on 09.03.2004 is

not fatal to the case of the prosecution.

40) Admittedly, to bring home the guilt against the

accused, the prosecution has to establish the conscious

possession of Ganja with the accused. The evidence adduced by

the prosecution consistently proves the fact that the accused

was in conscious possession of Ganja in the lorry by keeping

himself by the side of the lorry. Accused belonged to Karnataka

State. He had no occasion whatsoever to remain at the place of

offence unless he put forth any tenable reason for his presence

at the place of seizure. It is not his case that innocently without

noticing any Ganja in the lorry he travelled in the lorry as a

passenger. If such version is there, again he has to explain the

circumstance as to why he was there at the lorry when other

two persons absconded from the place. In fact, there would not

have been any possibility for the accused to abscond from the

place by leaving the huge quantity of Ganja at the scene with

the lorry. All these goes to show that the accused had

knowledge about the Ganja in the lorry and he was responsible

for bringing the same to the place of seizure.

41) The accused did not show any probability as to how

he came into custody of the police party. His defence that as he

did not know Telugu language, police obtained his signatures by

force is not at all tenable. There is no dispute about the fact

that the accused belonged to Karnataka State. The place of

seizure was in the forest area in East Godavari District. The

accused failed to explain as to why he was present at the place

of offence. He denied that he was not present there and he did

not receive any injuries. But, he had no say how he came into

custody of the police. So, the evidence on record cogently

establishes that the accused was in conscious possession of

Ganja.

42) Now, it is relevant to refer herein certain

presumptions as contemplated under Section 35 of the N.D.P.S.

Act. According to Section 35 of the Act, in any prosecution for

an offence under this Act which requires a culpable mental state

of the accused, the Court shall presume the existence of such

mental state but it shall be a defence for the accused to prove

the fact that he had no such mental state with respect to the act

charged as an offence in that prosecution. The explanation of

the above shows that „culpable mental state‟ includes intention,

motive knowledge of a fact and belief in, or reason to believe a

fact. The Hon‟ble Supreme Court in 2003 (11) ILD 491 SC

held that once possession is established, then the person who

claims that it was not a conscious possession has to establish it

because how he came to be in possession is within his special

knowledge.

43) According to Section 54 of the N.D.P.S. Act, it

contemplates certain presumptions. According to the said

section in trials under this Act, it may be presumed, unless and

until the contrary is proved, that the accused committed the

offence under this Act in respect of any narcotic drug or

psychotropic substance or controlled substance for the

possession of which he fails to account satisfactorily.

44) It is no doubt true that the presumption under

Section 54 of the N.D.P.S. Act and the presumption under

Section 35 would arise after the prosecution discharged its

burden to prove the recovery of the contraband from the

accused. In my considered view, the prosecution discharged its

burden about the recovery of contraband from the possession of

the accused. In such circumstances, it is for the accused to

prove the contrary. The accused had no semblance of say much

less probable say to prove contrary.

45) Having regard to the above, this Court is of the

considered view that the prosecution before the Court below

cogently established about the recovery of huge quantity of

contraband i.e., Ganja from the possession of the accused

beyond reasonable doubt. A perusal of Ex.P.7, the analysis

report, discloses that samples are of Ganja. The prosecution

established the link between M.O.1 to M.O.74 with that of the

Ganja that was seized from the accused. In my considered view,

the learned Special Judge on factual aspects rightly appreciated

the evidence on record and rightly found the guilty of the

accused. The learned Special Judge imposed minimum

punishment provided under law.

46) Having regard to the above, I am of the considered

view that absolutely there are no grounds to interfere with the

judgment of the learned Special Judge.

47) In the result, the Criminal Appeal is dismissed, as

such, the judgment of the Court below in NDPS S.C.No.8 of

2005, dated 02.07.2010 shall stand confirmed.

48) The Registry is directed to take steps immediately

under Section 388 Cr.P.C. to certify the order of this Court to

the trial Court on or before 09.03.2023 and on such certification,

the trial Court shall take necessary steps to carry out the

sentence imposed against the appellant and to report

compliance to this Court.

49) The accused is directed to surrender before the

Court below on or before 10.03.2023 and on such surrender the

learned Special Judge shall take necessary steps to entrust the

conviction warrant. If the accused fails to surrender on or before

10.03.2023, the learned Special Judge shall issue Non Bailable

Warrant and shall take necessary steps to carry out the

sentence imposed against the accused.

50) The Registry is directed to forward the record along

with copy of the judgment to the Court below with special

messenger on or before 07.03.2023.

Consequently, miscellaneous applications pending, if any, shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 03.03.2023.

Note: L.R. copy be marked.

PGR

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

Note:-

Registry to circulate a copy of this judgment to the Court below on or before 07.03.2023.

CRL. APPEAL NO.929 OF 2010

Date: 03.03.2023

PGR