Gurunadham Subba Rao Kavali ... vs The State Of A.P., Rep By Pp.,
2023 Latest Caselaw 5349 AP

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

             CRIMINAL APPEAL NO.339 OF 2009

JUDGMENT:-

      The judgment, dated 13.03.2009 in Sessions Case No.22

of 2007, on the file of Special Judge for NDPS Cases-cum-I

Additional District & Sessions Judge, Ongole ("Special Judge" for

short), is under the challenge in the present Criminal Appeal

filed by the unsuccessful accused in the above said Sessions

Case. The accused faced charge under Section 20 (b)(ii)(C) r/w

8(c) of the Narcotic Drugs and Psychotropic Substance Act, 1985

("NDPS Act" for short) before the learned Special Judge and he

was found guilty of the charge and he was convicted and

sentenced to undergo rigorous imprisonment for 10 years and to

pay   fine   of   Rs.1,00,000/-,   in   default   to   suffer   simple

imprisonment for two years.

      2)     The parties to this Criminal Appeal will hereinafter

be referred to as described before the learned Special Judge for

the sake of convenience.

      3)     The State, represented by Prohibition & Excise

Inspector, Podili, filed a charge sheet in Crime No.114/2006-07

of Prohibition & Excise Station, Podili under Section 8(c) r/w

20(b)(i) of NDPS Act, alleging in substance that the scene of
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offence is situated at the house of accused in S.T. Colony, Podili.

On receipt of credible information through phone call about the

storing of Ganja in the house of the accused, L.W.10-K.

Sreedevi, Prohibition & Excise Inspector, Podili along with her

staff L.W.9-D. Srinivasa Rao of Prohibition & Excise S.I., Podili;

L.W.1-A. Ramanaiah, P.C.1734 of Prohibition & Excise Station,

Podili; L.W.2-R. Polarao, P.C.203 of Prohibition & Excise Station,

Podili and L.W.3-Sk. Ghouse Basha, H.C.161 of Prohibition &

Excise   Station,     Podili   and        mediators   L.W.4-Yaddanapudi

Venkateswarlu and L.W.5-M.V.M. Seshachalam, proceeded to

the house of the accused, near Junior College, Podili on

17.03.2007

at 1-15 p.m. On search of the house of the accused,

they found 13 bags of ganja covered with clothes which are kept

in the gap of the house wall of the accused tied in two gunny

bags. One bag contained 10 Kgs and another bag contained 9.2

Kgs of dry ganja. They found 1.8 Kgs of ganja in small paper

packets (30 + 140 packets) in the house of the accused. They

arrested the accused after explaining the grounds of arrest and

seized the entire contraband from the house of the accused in

the presence of mahazar witnesses under the cover of

mahajarnama. During seizure L.W.10 took 100 grams of ganja

from each gunny bag and another approximate 100 grams of

ganja from the newspaper packets and she sealed and labeled

three samples. She returned to the Prohibition & Excise Station

along with arrested accused and seized contraband and

registered the mahazar report as a case in Crime No.114/2006-

07 under Section 8(c) r/w 20(b)(i) of NDPS Act and took up

investigation. She visited the scene of offence and examined

the same. She further examined L.W.6-S. Seetharamaiah,

Panchayat Secretary, Podili, L.W.7-Sreeramula Sarojini and

L.W.8-Kandela Venkateswarlu and recorded their statements.

During investigation she forwarded the samples to the Chemical

Examiner for Prohibition & Excise, Guntur. The Chemical analyst

opined that the samples are of ganja. Hence, the charge sheet.

4) The learned Special Judge took cognizance under

Section 8(c) r/w 20(b)(i)(C) of NDPS Act and after complying

necessary formalities under Section 207 of the Code of Criminal

Procedure ("Cr.P.C." for short), framed a charge under Section

20 (b)(ii)(C) r/w 8(c) of the NDPS Act against the accused and

explained to him in Telugu, for which he pleaded not guilty and

claimed to be tried.

5) In order to establish the guilt against the accused,

before the learned Special Judge, the prosecution examined

P.W.1 to P.W.6 and got marked Ex.P.1 to Ex.P.7 and M.O.1 to

M.O.6. After closure of the evidence of prosecution, the accused

was examined under Section 313 of Cr.P.C. with reference to

the incriminating circumstances appearing in the evidence let in

for which he denied the same. During Section 313 of Cr.P.C.

examination, he stated that on 16.03.2007 there was a quarrel

between him and the adjacent owners of the houses and the

local police came and took him and implicated him in excise case

falsely and that he is an innocent and he did not commit any

offence. In furtherance of the defence, the accused examined

D.W.1 and D.W.2.

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 under Section 20 (b)(ii)(C) r/w

8(c) of the NDPS Act, convicted him under Section 235(2) of

Cr.P.C. and after questioning him about the quantum of

sentence, sentenced him as above. Felt aggrieved of the same,

the unsuccessful accused filed the present Criminal Appeal.

7) Before going to frame the points for determination,

this Court would like to make it clear that the accused is

undergoing imprisonment pending disposal of the Criminal

Appeal as of now. As he did not prosecute the appeal properly,

this Court issued Non-Bailable Warrant against the accused.

Later, the police found the accused in judicial custody pertaining

to Crime No.8 of 2023 of SEB Station, Ongole. The learned

Special Judge secured the presence of the accused and

entrusted the conviction warrant pending disposal of the

Criminal Appeal.

8) Now, in the light of the contentions advanced in

deciding this Criminal Appeal, the points that arise for

consideration are as follows:

(1) Whether the investigating officer complied the relevant mandatory provisions of the NDPS Act in detection and investigation of the case against the accused?

(2) Whether the prosecution proved that the accused was found in possession of 21 Kgs of ganja on 17.03.2007 in his house in the manner as alleged and whether the prosecution proved the guilt against the accused beyond reasonable doubt?

(3) Whether the judgment, dated 13.03.2009 is sustainable under law and facts and whether there are any grounds to interfere with the same?

Point Nos.1 to 3:-

9) Ms. Harija Akkineni, learned counsel for the

appellant, would contend that though according to the case of

the prosecution, the investigating officer received credible

information about the storage of ganja in the house of the

accused, but there was no compliance of mandatory provisions

of Section 42 of the NDPS Act. She would submit that though

the accused raised various contentions as to non-compliance of

Sections 41, 42, 50, 52 and 57 of the NDPS Act, but now the

accused is confining his arguments about the violation of

mandatory provision under Section 42 of the NDPS Act. When

the accused raised this serious issue before the learned Special

Court, it gave a finding that when the information received is

not authentic, there is no need to comply Section 42 of the

NDPS Act. Here in the charge sheet, in the mahajarnama and in

the evidence, the case of the prosecution is that the

investigating officer received credible information about the

storage of ganja in the house of the accused. Thus, the finding

of the learned Special Judge is nothing but irregular. The

investigating officer violated the procedure regarding the lifting

of samples. He dumped all the so-called 170 packets into a

single cover and lifted one sample. He further dumped 13 so-

called small bags into two gunny bags and lifted two samples.

There is no guarantee that all the so-called 170 packets and 13

small gunny bags contained ganja. When the samples were not

lifted from all the above, it cannot be held that the accused

possessed commercial quantity of ganja. The entire conviction

is vitiated for violation of Section 42 of the NDPS Act and as the

investigating officer did not lift the samples in a proper manner.

In fact, the prosecution cited D.W.1 and D.W.2 as list of

witnesses 7 and 8 and it did not examine. Accused examined

D.W.1 and D.W.2 in furtherance of his defence. The contention

of the accused is that on the previous day he had a quarrel with

neighbouring house owners and then the police came there and

took away him and entrusted him to the Excise Police, as such,

he is falsely implicated. D.W.1 and D.W.2 supported the defence

theory. Irrespective of the evidence of D.W.1 and D.W.2, the

case of the prosecution must fall on its ground for utter violence

of Section 42 of the NDPS Act and further violation of procedure

regarding lifting of samples, as such, the accused is entitled to a

benefit of doubt.

10) Sri Y. Jagadeeswara Rao, learned counsel,

representing the learned Public Prosecutor, would canvass the

contention that the investigating officer issued Ex.P.1-search

proceedings before entering into the house of the accused.

Mahajarnama contains whisper about the issuance of such

proceedings. Though the search proceedings did not contain the

signature of the accused, but mahajarnama contained the

signature of the accused. Non-compliance of Section 42 of the

NDPS Act is not fatal. The investigating officer rightly issued

proceedings under Section 165 of Cr.P.C. before entering into

the house of the accused under Ex.P.1. According to the findings

of the learned Special Judge when the information so received

was not authentic, there is no need to comply Section 42 of the

NDPS Act. He would further canvass the contention that the

accused did not dispute his presence at the house and there is

no dispute about the ownership of the house with that of the

accused and the evidence adduced by the prosecution in the

form of P.W.1 to P.W.6 is consistent, as such, the Criminal

Appeal is liable to be dismissed.

11) P.W.1 is the then Inspector, Prohibition & Excise

Station, Podili. Her evidence is that on 17.03.2007 based on

information received at 12-30 noon, she along with raid party

proceeded towards Viswanadhapuram to the S.T. Colony to the

students' hostel. The house of the accused is opposite to there.

The accused was found in front of his house. He disclosed his

identity. They informed him that they got information about the

availability of ganja in his house and they have to search his

house. He reported no objection. They served search

proceedings under Ex.P.1. There are three rooms opposite to the

house in the premises covered by the same compound. He along

with mediators searched the house. They found 30 paper

packets in the hole of the wall. They found ganja in 30 packets.

In the course of further search, they found black colour

polythine bag with 140 paper packets of ganja. At one place

they further found 13 bundles covered with saree pieces and 13

bundles also contained ganja. They seized the ganja under the

cover of mahajarnama. They weighed paper packets total 170

and it was found as 1.8 Kgs of ganja. They further weighed 13

bundles of saree cloth pieces and found 19.200 Kgs. of ganja.

They put the ganja in two gunny bags and on weighing the

same, it is 10 Kgs + 9.2 Kgs. From the paper packets they

lifted 100 grams of ganja and from two gunny bags they lifted

100 grams of ganja each. They secured the proof of ownership

of the house of the accused. M.O.1 to M.O.3 were the seized

contraband. M.O.4 to M.O.6 were the samples. Ex.P.1 is the

search proceedings. Ex.P.2 is the electricity demand original

notice to the house of the accused. Ex.P.3 is the tax receipt.

Ex.P.4 is the mahajarnama. They arrested the accused under

the cover of mahajarnama. After returning to the station, she

registered the mahajarnama as a case in Crime No.114/2006-07

and took up investigation. Ex.P.5 is the F.I.R. She forwarded

the accused to the Court for remand. She forwarded the

samples to the chemical examiner. The chemical examiner

opined that the samples are of ganja. She obtained Ex.P.7

Panchayat Secretary Certificate.

12) P.W.2 is the Prohibition & Excise S.I., who assisted

P.W.1 in the investigation and according to him, he is also one

of the signatories to Ex.P.4-mediatornama and he participated in

the raid.

13) P.W.3 and P.W.4 are the mediators, who did not

support the case of the prosecution. According to P.W.3, he

knows L.W.5-Seshachalam V.R.O., Audalapalli. He went to ST

Colony of Viswanadhapuram at request. By then Excise

Inspector and Excise people were there. One person was there

in panic condition. No proceedings taken place in his presence.

He was asked to sign on Ex.P.4. The prosecution declared him

as hostile and during cross examination he denied the case of

the prosecution.

14) According to P.W.4, at about 3-00 p.m., on

27.03.2007 he went to ST colony and he did not observe

whether the accused is there. He was asked to sign on the slips

affixed to M.O.1 to M.O.6 and Ex.P.4-panchanama. The

prosecution declared him as hostile and during cross

examination he denied the case of the prosecution.

15) P.W.5 is the Panchayat Secretary, who issued Ex.P.7

to the effect that the accused is resident of ST Colony, Door

No.9-20-1.

16) P.W.6 is the Prohibition & Excise Constable, who

taken part in the raid and he deposed in tune with the evidence

of P.W.1.

17) According to the evidence of D.W.1, in March, 2007

there was a galata between wife of accused and wife of Excise

Constable in ST Colony at water tap at 7-00 a.m. Later, the

accused was taken away by local police of Podili. He was witness

to the said galata. He came to know that local police handed

over the accused to the Excise Police and he was implicated

falsely. During cross examination by the Additional Public

Prosecutor, he denied that he is deposing false in favour of the

accused.

18) The evidence of D.W.2 is that two years back,

morning at water pump, there was a galata between one

constable and his wife on one side and the accused and his wife

on other side. The accused was taken away by Podili police and

they implicated him in excise case. During cross examination by

the Additional Public Prosecutor, he denied that he is deposing

false in favour of the accused.

19) In the light of the contentions advanced, firstly, this

Court would like to deal with as to whether compliance of

Section 42 of the NDPS Act in this case is necessary and if so,

whether it is complied. For better appreciation, it is pertinent to

refer here Section 42 of the Act.

[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.]

20) The prosecution alleged that the investigating officer

seized commercial quantity of ganja in the house of the accused

bearing Door No.9-20-1, opposite to Government Boys Hostel,

ST Colony. According to the case of the prosecution, Ex.P.1-

Search proceedings were served on the accused before entering

into the house of the accused. The search place is nothing but a

building. The search is an act on the part of the investigating

officer entering into the building and made search of the house

of the accused. It is to be noted that a close perusal of Section

42 of the NDPS Act means that if any such officer has reason to

believe from personal 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

is kept or concealed in any building, conveyance or enclosed

place, he may between sunrise and sunset enter into and search

any such building, conveyance or place, etc. Coming to Ex.P.1

there is no dispute that investigating officer did not obtain the

signature of the accused on Ex.P.1. When it was addressed to

the accused intimating the intention of the investigating officer

to make search of his house, nothing prevented the

investigating officer to obtain the signature of the accused in

token of receipt of Ex.P.1. It is altogether a different aspect that

Ex.P.4-mahajarnama bears the signature of the accused in

which there was a whisper about the search proceedings. This

does not itself make the compliance of Section 42 of the NDPS

Act.

21) It is to be noted that the case of the prosecution

according to the charge sheet is that the investigating officer

received credible information about storage of ganja in the

house of the accused. So when it is a case that the investigating

officer received credible information about the storage of ganja

in the house of the accused, he should have taken down the

same in writing in compliance of the mandates under Section 42

of the NDPS Act. According to the evidence of P.W.1, on

17.03.2007 based on information received at 12-30 p.m., they

proceeded to the house of the accused. According to the

evidence of P.W.2, he assisted P.W.1 in detection and

investigation of the case. According to the evidence of P.W.6,

on 17.03.2007 afternoon he proceeded along with C.I. of Police.

As seen from Ex.P.4-mahajarnama, it is very specific that on

prior information received only they proceeded to the house of

the accused. According to the averments in the charge sheet,

the information so received was credible one. Absolutely, it is

not the evidence of P.W.1, the investigating officer, that he did

not reduce the information into writing so received, as it was not

credible. In the entire evidence of P.W.1, absolutely, there is no

whisper as to whether the investigating officer reduced the

information in writing so received especially when it was

credible. It is not the case that the investigating officer

proceeded to the house of the accused basing on personal

knowledge. Hence, when he received information, it must have

been from another person and in such a case he should have

noted down the information in writing. However, this is not

complied. Further mandate of Section 42 of the NDPS Act is

that within 72 hours he shall forward the copy of the information

so received to the superior officer. Thus, the evidence is lacking

in this case as regards the compliance of Section 42 of the NDPS

Act as above. It is not the case of the prosecution that without

there being any proper information during the routine raids to

detect prohibition and excise offences, they visited the house of

the accused and conducted raid. Absolutely, it is not such a

case. On the other hand, when the charge sheet itself reveals

that the investigating officer received credible information and

when it is not the case of the prosecution that he proceeded to

the house of the accused on personal knowledge, he was

supposed to reduce the information so received into writing and

to send the same to superior officer within 72 hours.

Absolutely, there is no whisper in the entire case of the

prosecution as to the compliance of the mandatory provision.

Time and again the Hon'ble Supreme Court held that violation of

Section 42 of the NDPS Act vitiates entire conviction.

22) It is to be noted that before the learned Special

Judge, the accused raised the serious contention as to violation

of Section 42 of the NDPS Act. The learned Special Judge made

a finding that compliance of Section 42 of the NDPS Act is not

necessary when the information is not such a credible. Here

none of the prosecution witnesses especially P.W.1, P.W.2 and

P.W.6 deposed that they received vague information. When the

evidence of P.W.1 and the averments in the charge sheet is so

clear that the investigating officer received credible information

about the storage of ganja, the finding of fact recorded by the

learned Special Judge as if there is no need to comply Section

42 of the NDPS Act when the information was not authentic is

untenable. Thus, it is clear that the investigating officer

miserably failed to comply Section 42 of the NDPS Act. The

punishments provided under NDPS Act are deterrent in nature.

The Legislature in its wisdom imposed several safeguards so as

to see that the penal provisions of the Act may not be abused.

Here is a case that investigating officer received credible

information that the accused stored ganja in his house. When

that is the situation, she was supposed to comply mandates

under Section 42 of the NDPS Act, but she did not comply.

Hence, it is a serious lacuna in the case of the prosecution.

23) Another grave irregularity which is found in the case

of the prosecution is that the investigating officer did not lift

samples from all the paper packets or other 13 bags, as the

case may be. The case of the prosecution is so specific that at

one place in the house of the accused 30 paper packets were

found which contained ganja. At another place 140 paper

packets were found which contained ganja. At another place 13

small bags were found which contained ganja. There is no

guarantee that all the paper packets 170 in number and all the

13 small bags contained ganja. So, to prove that they contained

ganja, the investigating officer was supposed to take samples

properly. Instead of lifting samples each from 170 paper packets

and 13 small bags what she did is that she thrown the so-called

ganja of 13 small bags into two gunny bags. Further she thrown

the so-called ganja from 170 packets into a small bag and she

lifted three samples from each as above. Thus, the investigating

officer committed a serious irregularity in not lifting the samples

from all the above items. In the absence of lifting samples from

all the above items, it cannot be held that each item contained

ganja. The case of the prosecution cannot stands to the test of

scrutiny on its face value to say that the accused was found in

possession of commercial quantity of ganja of 21 Kgs. This is

another serious irregularity committed by the investigating

officer.

24) Apart from this, the investigating officer did not care

to take the signature of the accused on Ex.P.1- Section 165 of

Cr.P.C. search proceedings. The investigation conducted by the

investigating officer is not free from blemish. It is a fact that

the mahazar witnesses i.e., P.W.3 and P.W.4 turned hostile to

the case of the prosecution. Thus, there is no corroboration to

the testimony of P.W.1, P.W.2 and P.W.6 from independent

source. The investigating officer cited D.W.1 and D.W.2 as

prosecution witnesses, who are not examined by the

prosecution. Of course, the evidence of D.W.1 and D.W.2 is

contrary to the case of the prosecution. However, as the

evidence of P.W.1, P.W.2 and P.W.6 have no corroboration from

P.W.3 and P.W.4, evidence is to be scrutinized with care and

caution. If the evidence of P.W.1, P.W.2 and P.W.6 is scrutinized

with care and caution, it is quite apparent that the investigating

officer did not set forth any reason whatsoever for non-

compliance of Section 42 of the NDPS Act. The finding of the

learned Special Judge that it is not liable to be complied when

there was no authentic information cannot stands to any reason

on account of the reasons furnished supra. Apart from this, the

investigating officer committed a serious irregularity in not lifting

samples in a proper manner. The act of the investigating officer

in dumping so-called ganja from 170 packets into a single small

packet and lifting one sample is a serious irregularity. The

further act of the investigating officer in dumping the so-called

ganja from 13 small bags into two gunny bags and lifting only

two samples is also another irregularity. On this count itself the

entire conviction is vitiated. Having regard to the above, I am

of the considered view that the non-compliance of Section 42 of

the NDPS Act is a serious lacuna in the case of the prosecution

and further the non-lifting of samples from the so-called all

paper packets and so-called small gunny bags is another serious

lacuna in the case of the prosecution.

25) Viewing from any angle, I do not find any tenable

reason to say that the accused was found in commercial

quantity of ganja. The manner in which the investigating officer

claimed to have conducted raid is not free from blemish. The

evidence of P.W.1, P.W.2 and P.W.6 is not that of sterling

quality and it is lacking corroboration from the independent

source.

26) In the light of the above, I am of the considered

view that the prosecution failed to prove the charge against the

accused. The learned Special Judge with erroneous appreciation

of evidence recorded the conviction and sentenced the accused

which is not tenable. Hence, I hold that the judgment, dated

13.03.2009 in Sessions Case No.22 of 2007 of the learned

Special Judge, is not sustainable under law and facts and the

accused is entitled for acquittal by extending the benefit of

doubt.

27) In the result, the Criminal Appeal is allowed setting

aside the judgment, dated 13.03.2009 in Sessions Case No.22

of 2007, on the file of learned Special Judge for NDPS Cases-

cum-I Additional District & Sessions Judge, Ongole and thereby

the appellant/accused shall stand acquitted of the charge under

Section 20 (b)(ii)(C) r/w 8(c) of NDPS Act. The fine amount, if

any, paid by the accused shall be refunded to him after appeal

time is over. The accused shall be released forthwith if he is not

required in any other case.

28) The Registry is directed to forward the copy of this

judgment to the trial Court as well as to the Central Prison,

Nellore, where the accused undergoing imprisonment forthwith.

Further the Registry is directed to forward the record to the trial

Court within one week from this day.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 07.11.2023.

PGR

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

CRL. APPEAL NO.339 OF 2009

Note:

The Registry is directed to forward the copy of this judgment to the trial Court as well as to the Central Prison, Nellore, where the accused undergoing imprisonment forthwith.

LR copy be marked.

Date: 07.11.2023

PGR