Andhra Pradesh High Court - Amravati
Yanaki Gopala Krishna, ... vs The State, Rep. By P.P., ... on 12 October, 2023
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CRIMINAL APPEAL No.692 OF 2010
Between:
1) Yanaki Gopala Krishna, S/o Pullaiah,
Aged about 51 years, Setti Balija,
Resident of Marellavari Street, 22nd Ward,
Near Simhadri Appanna Temple,
Bheemavaram, West Godavari District.
2) Shaik Khaja Mohiddin Basha, S/o Rahimuth
Saheb, aged 49 years, Muslim, resident of
Lingamgunta Village, Anantasagaram Mandal,
Nellore District. ... Appellants/Accused.
Versus
The State: Prohibition and Excise Inspector,
Mangalagiri, rep. by the Public Prosecutor,
High Court of Andhra Pradesh. ... Respondent/Complainant.
DATE OF JUDGMENT PRONOUNCED : 12.10.2023
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
* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ CRIMINAL APPEAL No.692 OF 2010
% 12.10.2023
# Between:
1) Yanaki Gopala Krishna, S/o Pullaiah,
Aged about 51 years, Setti Balija,
Resident of Marellavari Street, 22nd Ward,
Near Simhadri Appanna Temple,
Bheemavaram, West Godavari District.
2) Shaik Khaja Mohiddin Basha, S/o Rahimuth
Saheb, aged 49 years, Muslim, resident of
Lingamgunta Village, Anantasagaram Mandal,
Nellore District. ... Appellants/Accused.
Versus
The State: Prohibition and Excise Inspector,
Mangalagiri, rep. by the Public Prosecutor,
High Court of Andhra Pradesh. ... Respondent/Complainant.
! Counsel for the Appellants:
Sri N. Harinath, learned counsel, representing
Sri Ch. Ravindra Babu for 1st appellant.
Sri Bhogadi Mallikharjuna Devarayulu, learned
State Brief for 2nd appellant.
^ Counsel for the Respondent : Public Prosecutor
< Gist:
> Head Note:
? Cases referred:
2022(1) ALT (Crl.) 208 (T.S.)
(2018) 2 Supreme Court Cases 305
2014(1) ALD (Crl.) 363 (SC)
(1994) 3 SCC 299
(2001)2 ALD (Crl.) 928 (AP)
AIR 2000 SC 402
(1999) 6 SCC 172
AIR 2003 SC 724
(2001) 3 SCC 28
(2004) 5 Supreme Court Cases 188
(2003) 7 SCC 465
(2000) 9 SCC 541
(2014) 5 Supreme Court Cases 345
2023 CRI.L.J.1696
2023(2) ALT (Crl.) 281 (A.P.)
This Court made the following:
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL APPEAL NO.692 OF 2010
JUDGMENT:-
The judgment, dated 19.03.2010 in Sessions Case No.2 of
2010, on the file of I Additional Sessions Judge, Guntur, is under
challenge in the present appeal filed by the unsuccessful
Accused No.1 and Accused No.2 ("A.1 and A.2" for short), who
faced conviction and sentence under Section 8(c) r/w Section
20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substance
Act, 1985 ("NDPS Act" for short) for possessing 30 Kgs. of
Ganja.
2) The parties to this Criminal Appeal will hereinafter
be referred to as described before the trial Court for the sake of
convenience.
3) The case of the prosecution, in brief, according to
the averments set out in the charge sheet filed by the State,
represented by Prohibition & Excise Inspector, Mangalagiri, in
Crime No.89/2009-10 of Prohibition & Excise Station,
Mangalagiri, under Section 8(c) r/w Section 20(b)(ii)(C) of the
NDPS Act, is that;
(a) A.1 is resident of Marellavari Street, 22nd Ward, Near
Simhadri Appanna Temple, Bheemavaram, West Godavari
District and A.2 is resident of Lingamgunta Village,
Ananthasagaram Mandal, Nellore District.
(b) On 21.11.2009 L.W.3-G.E. Ananda Babu, Prohibition &
Excise Head Constable, Mangalagiri; L.W.4-D. Rama Krishna,
Prohibition & Excise Constable, Mangalagiri; L.W.5-Y. Ashok
Kumar, Prohibition & Excise Sub Inspector, Mangalagiri and
L.W.6-T. Srinivasa Rao, Prohibition & Excise Inspector,
Mangalagiri, along with other staff conducted vehicle checking of
the vehicles coming from Vijayawada side, near Khaja Tollgate,
from 8-30 a.m. onwards. At about 10-45 a.m., L.W.6 stopped
the APSRTC bus bearing No.A.P.28 Z 5018 from Machilipatnam
to Tirupati to check the bus. Accordingly, he conveyed intention
to check the bus to the driver of the said bus and served search
proceedings under Section 165 of the Criminal Procedure Code
("Cr.P.C." for short) on L.W.1-A. Surya Nagendra Rao, bus
driver. On search, he found A.1 in seat No.11 in the 4 th row
behind the conductor and further found A.2 in the seat No.14,
behind the driver, by keeping some bags in front of them. On
enquiry, both of them admitted possession of Ganja in the said
bags in a confusing manner. Then, L.W.6 requested L.W.1 and
L.W.2-K. Ramkumar, the Drivers of the said RTC Bus to act as
mediators, for which they agreed to do so. In the presence of
them, he verified the white polythene sticks bag and black zip
bag with A.1 and white polythene sticks bag and wheat colour
sticks bag with A.2. He found leaves, stems, flowers and seeds
smelling as Ganja. Then he secured one electronic weighing
machine with the help of L.W.3. In the presence of mediators
i.e., L.W.1 and L.W.2, he got numbered the bags as Sl.Nos.1
and 2 in respect of the bags of A.1 and numbered the bags of
A.2 as Sl.Nos.3 and 4 and got weighed the same. He found
8.500 Kgs, 8.500 Kgs., 7.00 Kgs. and 6-00 Kgs. in total 30 Kgs
of Ganja in the above said bags. A.1 and A.2 revealed their
names and identity particulars on enquiry by him. They
confessed about the commission of offence. They handed over
the bus journey tickets. Then he has taken 100 grams of Ganja
each into four separate paper packing, as samples for analysis
and kept the remaining Ganja in the respective bags, tied the
same, sealed and affixed identity slips. He arrested A.1 and A.2
after explaining grounds of arrest under cover of a mediators
report scribed by L.W.4. Later, he registered the mediators
report as a case in Crime No.89 of 2009-10 under Section 8(c)
r/w Section 20(b)(ii)(C) of the NDPS Act and submitted original
FIR to the concerned Court. He forwarded A.1 and A.2 for
remand. He sent samples along with remaining crime property
to the Court for the purpose of analysis and safe custody. As
per the directions of the Court, an inventory proceedings under
Section 52(A)(2) of NDPS Act was prepared on 24.11.2009.
Samples were sent to the analysis. Analysis opined in
Rc.No.1549/2009, dated 03.12.2009 that samples are of Ganja.
Hence, both the accused liable for punishment under Section
8(c) r/w Section 20(b)(ii)(C) of the NDPS Act.
4) The learned I Additional Sessions Judge, Guntur,
took cognizance of the case under the above provisions of law.
After appearance of both the accused and after compliance of
Section 207 of Cr.P.C., the learned I Additional Sessions Judge,
Guntur, framed charge under Section 8(c) r/w 20(b(ii)(C) of
N.D.P.S Act for allegedly possessing commercial quantity of
Ganja against both the accused, explained to them in Telugu, for
which they pleaded not guilty and claimed to be tried.
5) In order to establish the guilt against the accused,
the prosecution, during the course of trial, examined P.W.1 to
P.W.3 and got marked Ex.P.1 to Ex.P.14 and M.O.1-four sample
packets. 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 that they have nothing to say anything before the
Court and they have no defence witnesses.
6) The learned I Additional Sessions Judge, Guntur, on
hearing both sides and on considering the oral as well as the
documentary evidence, found the accused guilty of the charge
under Section 8(c) r/w Section 20(b)(ii)(C) of the NDPS Act and
convicted them. After questioning them about the quantum of
sentence, the learned I Additional Sessions Judge, Guntur,
sentenced both the accused to suffer rigorous imprisonment for
10 years each and to pay a fine of Rs.1,00,000/- each, in default
to suffer simple imprisonment for two years each and that the
period of detention undergone by the accused shall be set off
under Section 428 of Cr.P.C. Felt aggrieved of the same, the
unsuccessful accused filed the present Criminal Appeal
challenging the judgment of conviction and sentence as above.
7) Now, in deciding this Criminal Appeal in the light of
the contention advanced before the learned I Additional
Sessions Judge, Guntur and before this Court, the points for
determination are as follows:
(1) Whether the prosecution proved that whether the
mandatory provisions of Sections 42, 43 and 50 of the
NDPS Act are applicable to the case of the accused and if
so, whether they are complied?
(2) Whether the prosecution proved the charge against
the accused beyond reasonable doubt?
(3) Whether the judgment of the I Additional Sessions
Judge, Guntur, dated 19.05.2010 in S.C.No.2 of 2010, is
sustainable under law and facts?
POINT NOS.1 TO 3:-
8) Before taking up the points for determination, it is
necessary here to make a mention certain circumstances in
which the present second appellant is in Central Prison,
Rajahmundry by carrying out the sentence imposed against him.
This Criminal Appeal is of the year 2010. Previously, when the
matter was coming for hearing of the appellants, after giving
several opportunities on 23.11.2022 the learned counsel for the
appellants represented that he has no instructions. Then the
Court issued bailable warrants to both the appellants on
condition that if they execute self-bonds for Rs.10,000/-, they
will be released and they should appear before this Court on the
date of next hearing and instruct their counsel to advance the
arguments. The matter was listed on 16.12.2022 for
compliance. While so, on 16.12.2022 Sri Y. Jagadeeswara Rao,
learned counsel, representing the learned Public Prosecutor,
represented that the Superintendent of Jail, Atmakur sent an
information that the second appellant is lodged in Sub-Jail,
Atmakur, SPSR Nellore District, pertaining to Crime No.100 of
2022 filed under Section 8(c) r/w 20(b)(ii)(B) of N.D.P.S. Act
and also Crime No.86 of 2022 of SEB, Rapur under Section 8(c)
r/w 20(b)(ii)(B) of N.D.P.S. Act, as such bailable warrant could
not be executed. As the police could not secure the presence of
second appellant by executing the bailable warrant and as the
conduct of the second appellant was against the spirit of the bail
bond executed by him, this Court directed the trial Court to take
necessary steps to entrust the conviction warrant of the second
appellant to the concerned police so as to carry out the sentence
imposed in S.C.No.2 of 2020 pending disposal of the Criminal
Appeal. Accordingly, this Court cancelled the suspension of
sentence that was granted in favour of the second appellant vide
order, dated 26.05.2010. Thereafter, compliance report is
received from the I Additional Sessions Judge, Guntur that the
directions are complied and that the second appellant is lodged
in Central Prison, Rajahmundry to carry out the conviction
pending disposal of the Criminal Appeal. Insofar as the first
appellant is concerned, on 05.01.2023 he was present and the
learned counsel for the first appellant wanted to continue on
record. This Court got appointed a counsel by name Sri B.M.
Devarayalu under State Brief to defend the second appellant.
These are the circumstances in which the second appellant is in
Central Prison, Rajahmundry as of now.
9) P.W.1 is the driver in APSRTC, Machilipatnam. He
deposed in substance that on 21.11.2009 they started at 7-00
a.m., in Machilipatnam and reached Vijayawada at 10-00 a.m.
The accused boarded the bus at Vijayawada. At Khaja tollgate,
Mangalagiri, police stopped the bus. Police seized bags from the
accused, opened them and found Ganja. Ex.P.1 is the positive
photograph of four bags seized from the possession of the
accused containing Ganja. He and Ramakumar are the driver of
the bus. The accused were taken to police station. All the
procedure was scribed on a paper. He signed on it. Ex.P.2 is
the mahazarnama. The other driver also signed on the
mediatornama, dated 21.11.2009. He signed on the identity
slips. The signatures found on the sample packets are of him.
He does not know about the contents of it. As P.W.1 deviated
on certain aspects from Ex.P.2, the mahazarnama, as if accused
were taken to police station and all the procedure were scribed
on a paper at police station, the learned Additional Public
Prosecutor got declared him as hostile and during cross
examination by the learned Additional Public Prosecutor, he
deposed that the contents of Ex.P.2 are correct. He denied that
police packed the samples in his presence and that he is
deposing false to help the accused.
10) During cross examination by the learned defence
counsel, he deposed that there are about 25 passengers at the
time of incident. Ex.P.2-mediatornama and samples were
prepared at the police station and he signed on it. He signed
Ex.P.2 at the police station. It was prepared by Mangalagiri
police.
11) Turning to the evidence of P.W.2, another driver of
APSRTC, he deposed that on 21.11.2009 while they were
travelling in their bus, police apprehended both the accused at
about 10-45 a.m., at Mangalagiri, Khaja tollgate. On that day,
they were going to Tirupati from Machilipatnam. They stopped
the bus at tollgate for payment of toll fee. Police stopped the
bus, checked the passengers and found four bags from the
accused from the upper rack on their seat. Ex.P.1 shows the
photos of the bags. The accused boarded the bus at Vijayawada.
They issued tickets to the accused. The police checked the
tickets issued by him. Ex.P.3 is the tickets two in number. The
police drafted mahazarnama. It contains his signature also. He
signed on Ex.P.2-mediatornama. He also signed in two or three
other papers. The identity slips on the samples contains his
signature. Portion of the leaves from the seized bags were
taken as samples and they were packed with small packets.
M.O.1 is four samples.
12) During cross examination by the learned defence
counsel, he categorically deposed that they signed on Ex.P.2
and M.O.1 at tollgate. They stayed for about 10 minutes at the
police station. Police seized the bags from the luggage stand.
He denied that police seized nothing from the possession of the
accused and that the accused are in no way connected with the
offence and that he signed on Ex.P.2 and identity slips at the
police station and that at request of the police he is deposing
false.
13) Turning to the evidence of P.W.3, the then Inspector
of Police, Prohibition & Excise Station, Guntur, he deposed that
he worked in Prohibition & Excise Station, Mangalagiri, Guntur
District from 05.01.2008 to 04.01.2010. On 21.11.2009 he
along with his staff were conducting vehicular check at Khaja
tollgate from 8-30 a.m. onwards. They checked vehicles coming
from Vijayawada side. At 10-45 a.m., one APSRTC Bus
No.A.P.28 Z 5018 from Machilipatnam to Tirupati and crossed
the Khaja tollgate. They stopped the bus, informed the bus
driver, served him the search proceedings and checked the bus.
Ex.P.4 is the search proceedings. They found A.1 in Seat No.11
and further found A.2 in Seat No.14 while keeping some bags in
front of them. When asked the accused, they confessed that the
bags are containing Ganja. Then he asked the driver and
following driver i.e., P.W.1 and P.W.2 to act as mediators. In
their presence, he searched the bags found in possession of the
accused. He found one white polythene sticks handbag, one
black colour zip bag in front of A.1 and one white polythene
sticks handbag and brown colour stick handbag in front of A.2.
They opened the four bags and found Ganja with seeds, leaves,
stems and fruits of Ganja. Then, he deputed his Head Constable,
G.E. Ananda Babu-L.W.2 to secure weighing machine. After 15
minutes he came with weighing machine. He got numbered four
bags as Sl.Nos.1, 2, 3 and 4 and weighed the bags as Bag No.1
8-5 kags, Bag No.2 8.5 kgs., Bag No.3 7 kgs and Bag No.4 6
kgs. They found 30 Kgs of Ganja in all. He ascertained the
identity particulars of the accused. Then he examined them
about the possession of Ganja, for which they replied that they
purchased the Ganja at Paderu from an unknown person,
brought the same to Vijayawada and boarded in the bus and
going to Kavali for selling the same at higher price. For that both
the accused handed over their journey tickets Ex.P.3. He had
drawn 100 grams of Ganja from each bag as M.O.1-samples for
chemical analysis and affixed identity slips after taking the
signatures of mediators, accused and he himself on it and
affixed them to samples. He informed the grounds of arrest to
the accused, arrested them and seized the case property under
Ex.P.2-mediatornama. He returned to Mangalagiri Excise Station
at 10-50 p.m., and registered the mediatornama as a case in
Crime No.89/2009-10 and issued Ex.P.5-FIR under Section 8(c)
r/w 20(b) of NDPS Act. He produced both the accused for
judicial remand and submitted the case property along with
samples to the concerned Court. As per the directions of the
Court, he had prepared inventory proceedings in Form-66 under
Ex.P.6. Ex.P.7 is the preliminary report. He also submitted
Ex.P.7 report to his superior officers. He submitted a memo
under Section 52(A) before Additional Junior Civil Judge‟s Court,
Mangalagiri. Ex.P.8 is the said Memo. Ex.P.9 is the proceedings
under Section 52(A). The Court allowed his requisition and
certified the correctness of inventory. He got photographed the
samples, contraband and he forwarded the same to the Court.
The inventory acceptance letter from Addl. Junior Civil Judge,
Mangalagiri to the I Additional Sessions Judge, Guntur is
Ex.P.10. He also forwarded the samples for chemical analysis
through the Court by way of letter of advice. Ex.P.11 is the
letter of advice. Ex.P.12 is the analysis report received by him.
Form No.66 endorsement, dated 21.11.2009 is Ex.P.13. Ex.P.14
is the photographs six in number at the time of inventory. After
completion of investigation, he filed the charge sheet.
14) Turning to the cross examination part of P.W.3, he
deposed that on the date of incident, they checked 10 to 20
vehicles. They served notice under Section 165 of Cr.P.C. to
them. They registered FIR at 12-50 p.m. He took 15 minutes
from tollgate to Court. Along with the accused, they also sent
samples and property. The Court gave instructions to them to
dispose of the property as per Section 52(A). Ex.P.2 is prepared
at the tollgate at the left side road margin. As per Ex.P.2, they
seized four bags at the seat of the accused. Constable
Ramakrishna prepared Ex.P.2 on his instructions. He denied
that they did not find Ganja from the accused and they did not
stop the bus and that the accused are in no way connected with
the offence and they planted M.O.1 for the purpose of case. He
denied that he prepared everything in the police station at 4-00
p.m., and did not follow the mandatory provisions in this case
and that he lifted the samples in the police station and obtained
the signatures of P.W.1 and P.W.2 in the police station.
15) Sri N. Harinath, learned counsel, representing the
learned counsel for the first appellant, would contend that
P.W.1-the so-called mediator did not support the case of the
prosecution. If his evidence that everything is prepared in the
police station is considered, the accused should have been
acquitted. P.W.2-another driver supported the case of the
prosecution. According to him, the so-called Ganja bags were
found in the luggage rack of the RTC bus. If that be the case,
possession of Ganja cannot be attributed to the first appellant.
P.W.2 categorically testified this in chief examination and cross
examination. The evidence on record did not prove the
conscious possession of Ganja by the first appellant. Even
otherwise, there is a violation of Sections 42, 43 and 50 of the
NDPS Act. The evidence of P.W.3 did not reveal that they duly
informed to the accused about their right to be searched before
a Gazetted Officer or a Magistrate in compliance of Section 50 of
the NDPS Act. Therefore, there is utter violation of Section 50
of the Act. The Hon‟ble Supreme Court categorically held in a
decision in 2014 that violation of Section 50 of the Act would
enure the benefit of doubt to the accused. He would further
submit that he is filing the said decision. So, on account of non-
compliance of the mandatory provisions as above, the first
appellant is entitled for acquittal. He placed a memo on record
as if he is relying upon the decision of the Telangana High Court
in Athram Kashiram vs. State of Telangana, through
Inspector, Prohibition and Excise Station, Utnoor,
Adilabad District, reptd. By Public Prosecutor, High Court,
Hyderabad1 and the decision of the Hon‟ble Supreme Court in
2022(1) ALT (Crl.) 208 (T.S.)
Criminal Appeal No.870 of 2016 and as if they dealt with the
mandatory provisions of Section 50 of the Act. Apart from the
above, he would place reliance in Gorakh Nath Prasad vs.
State of Bihar2. He would rely upon the decision in Gurajant
Singh @ Janta vs. State of Punjab 3 , contending that the
Hon‟ble Supreme Court stressed compliance of Section 50 of the
Act and failure to comply it would enure the benefit of doubt.
With the above submissions, he seeks to allow the Criminal
Appeal.
16) Sri Bhogadi Mallikharjuna Devarayalu, learned State
Brief counsel, would canvass the contentions on the similar lines
of the learned counsel for the first appellant and he represents
that he would adopt the arguments advanced by the learned
counsel on behalf of the first appellant.
17) Sri N. Sravan Kumar, learned Special Assistant to
the learned Public Prosecutor, would contend that for obvious
reasons P.W.1 turned hostile. P.W.2 supported the case of the
prosecution. According to the evidence of P.W.3 coupled with
Ex.P.2-mahazarnama, police seized Ganja when the bags were
lying in front of their legs. The evidence of P.W.2 throws the
discrepancy that the Ganja was found in the racks on the seat of
(2018) 2 Supreme Court Cases 305
2014(1) ALD (Crl.) 363 (SC)
the accused. He would strenuously contend that Ex.P.1
photographs which were taken after seizure of Ganja would
reveal that size of bags is such that they cannot be put in
luggage rack and they are big one. Even otherwise, P.W.3
categorically deposed in cross examination that as per Ex.P.2,
they seized four bags on the seat of the accused. No
contraversion was suggested to P.W.3 and his evidence is not
challenged. There are number of decisions of the Hon‟ble
Supreme Court which repeatedly held that Section 50 of the
NDPS Act has no application when there was no personal search
of the accused and this Court in various decisions dealt with the
same by following the law laid down by the Hon‟ble Supreme
Court. During routine checking of the vehicles only, the present
case could be detected. It was not on the basis of any prior
information. It is not the case of the prosecution or the evidence
that on prior information, the raid was conducted. There is no
proper cross examination as to non-compliance of Sections 42,
43 and 50 of the Act. There is no necessity to comply Section
50 of the Act because there was no prior information and further
there was no personal search of both the accused. Section 50 of
the Act had no application in such circumstances. When the
recovery was effected in a public place, it was in accordance
with Section 43 of the Act. With the above said contentions, the
learned Special Assistant to the learned Public Prosecutor seeks
to dismiss the Criminal Appeal filed by the appellants.
18) In the light of the contentions advanced as above,
firstly, this Court would like to delve into the factual aspects as
to whether there is any cross examination as to the alleged non-
compliance of Section 50 of the Act. Nothing is there in the
testimony of P.W.1 to P.W.3 that they started checking the
vehicles at Khaja tollgate, Mangalagiri on the basis of any prior
information. During cross examination, a vague suggestion was
put forth before P.W.3 that they did not follow the mandatory
provisions in the case. What were the so-called mandatory
provisions which were not followed by P.W.3 were not spelt out.
However, it appears that during arguments before the learned I
Additional Sessions Judge, accused got canvassed a contention
as to the non-compliance of Sections 50 and 42 of the Act and
the learned I Additional Sessions Judge did not find favour with
the above said argument on the ground that there was no
personal search under Section 50 of the Act and further when
the recovery was effected in public place, there was no need to
comply Section 42 of the Act. Though the above said reasoning
is found to be cryptic, but this Court while deciding a case of
conviction has to re-appreciate the entire evidence on record to
ascertain as to whether there was any necessity for compliance
of mandatory provisions of NDPS Act and if so, whether they
were complied with or not. So, on factual front, accused failed
to confront with the testimony of P.W.3 in this regard.
19) Now, this Court would like to deal with relevant
provisions under Section 50 of the NDPS Act to decide as to
whether its compliance is necessary or not. 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) Now this Court would like to deal with the decisions
cited by the learned counsel for the first appellant.
21) Turning to Athram Kashiram's Case (1 supra),
absolutely, the above factual matrix is relating to errors in
framing of charge and the discrepancies in the evidence. It has
nothing to do with Section 50 of the Act as canvassed by the
learned counsel for the first appellant.
22) Turing to the decision of the Hon‟ble Court in
Criminal Appeal No.870 of 2016, it dealt with a situation
whether the Hon‟ble Supreme Court considered the law as
regards the principles relating to an appeal against an order of
acquittal when an appeal is before the superior Courts. Even the
above said decision also did not deal with Section 50 of the act
as canvassed by the learned counsel for the appellant.
23) Turning to Gorakh Nath Prasad's case (2 supra), it is
a case where the material witnesses turned hostile. While
dealing with Section 50 and 42 of the Act, the Hon‟ble Supreme
Court was of the view that as P.W.2 and P.W.3 turned hostile as
if their signatures were obtained on a blank paper at police
station, the issue whether there has been compliance with
Sections 42 and 50 of the Act losses its relevance in the facts of
the case. So, in my considered view, the decision in Gorakh
Nath Prasad's case (2 supra) is of no use to the case of the
appellants.
24) Now, turning to another decision in Gurjant Singh @
Janta's case (3 supra), in the above said appeal there was a
contention before the Hon‟ble Supreme Court by the appellant
as to the non-compliance of Sections 50 and 42 of the Act. The
factual matrix is that on 04.04.1996, S.I. Darbara Singh (P.W.6)
was posted as S.H.O., Police Station, Sunam. He claimed that
he along with other staff were present at „T‟ point in an area of
village in connection with Nakabandi. At about 00-15 a.m., one
tractor trolley was seen coming from the side of village Ugrahan.
They stopped the tractor and that the driver, who tried to slip
away, was caught hold of and the driver revealed his name as
the appellant and the police party checked the trolley of the
tractor and found three gunny bags lying inside the trolley.
P.W.6 told to appellant that he intended to search the gunny
bags as he suspected some incriminating articles in the gunny
bags and if so desired, the search could be conducted in the
presence of a Gazetted Officer or a Magistrate. The appellant
was stated to have expressed his consent that it may be
conducted in the presence of some Gazetted Officer or a
Magistrate. Thus, they secured the presence of P.W.3, a DSP of
the police department, as a Gazetted Officer and in his presence
they claimed to have searched gunny bags. So, the accused
contended before the trial Court that there was no compliance of
Sections 42 and 50 of the Act. The trial Court took the view that
there was no necessity to comply Section 50 of the Act, as such,
did not go into the question whether P.W.3 was a competent
Gazetted Officer or not. The trial Court followed the decision in
State of Punjab vs. Balbir Singh4. Accordingly, the appellant
was found guilty. When the appellant filed an appeal before the
High Court, appeal was dismissed. Then the matter went in
appeal before the Hon‟ble Supreme Court. The Hon‟ble Supreme
Court dealt with the factual aspects and held that both the trial
Court and the High Court could not understand the law laid
down by the Hon‟ble Supreme Court in Balbir Singh's case(4
supra). Ultimately, the Hon‟ble Supreme Court held that both
the trial Court and the High Court committed errors while
considering the case of the prosecution and reversed the
judgment of conviction. It is on this decision the learned counsel
for the first appellant would place reliance strongly to contend
that as Section 50 of the Act is violated, the first appellant is
entitled for an acquittal.
(1994) 3 SCC 299
25) This Court would like to make it clear that there are
several decisions of the Hon‟ble Supreme Court reiterating that
when there was no personal search, there is no question of
compliance of Section 50 of the Act. Now, it is appropriate to
refer the same here for better appreciation.
26) Firstly, 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.
27) 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.
28) In Bodaband Sundar Singh vs. State of A.P. 5 ,
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
(2001)2 ALD (Crl.) 928 (AP)
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 Kalema Tumba vs. State of Maharashtra 6 and
further the Constitutional Bench decision of the Hon‟ble Supreme
Court in State of Punjab vs. Baladev Singh7 . 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.
29) The factual scenario in Kaleme Thumba's case (6
supra) before the Hon‟ble Supreme Court is that the contraband
was recovered from the black coloured rexine bag of the
accused and the Hon‟ble Supreme Court in the above said
decision categorically held that the contention of the appellant is
liable to be rejected because only when the person of an
accused is to be searched then he is required to be informed
about his right to be examined in the presence of Gazetted
Officer or a Magistrate. The Hon‟ble Supreme Court in Kalema
Tumba's case (6 supra) as referred to above, followed the
AIR 2000 SC 402
(1999) 6 SCC 172
Constitutional Bench decision of the Hon‟ble Supreme Court in
Baldev Singh's case (7 supra). As seen from the above decision
(5 supra), the Hon‟ble Supreme Court dealt with the issues
under Section 50 of the Act and other mandatory provisions of
the Act. When the matter was referred to a Constitutional
Bench, the Hon‟ble Supreme Court dealt with the effect of non-
compliance of Section 50 of the Act. The first conclusion at para
No.57 (1) is 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
of being taken to the nearest gazette officer or the
nearest Magistrate for making the search. However, such
information may not necessarily be in writing.
30) Therefore, it means that when there was a proposal
to search a person, it is imperative for the investigating officer
to inform the accused about his right to be searched before a
gazette officer.
31) In Saikou Jabbi vs. State of Maharashtra in
Criminal Appeal No.103 of 20038, the Hon‟ble Supreme Court
dealing with Section 50 of the Act and also by relying upon the
earlier decisions in Kalema Tumba's case (6 supra) and Baladev
AIR 2003 SC 724
Singh's (7 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.
32) The factual matrix in the above said case is also
such that the contraband i.e., article of heroin was hidden in a
suitcase of accused at airport. The Hon‟ble Supreme Court
dealing with the same categorically held at para No.11 as
follows:
11. A bare reading of Section 50 shows that it only
applies in case of personal search of a person. It does
not extend to search of a vehicle or a container or a bag
or premises. (See Kalema Tumba's case (6 supra) and
Baldev Singh's case (7 supra) and Gurbax Singh vs.
State of Haryana 9 .) The language of Section 50 is
implicitly clear that the search has to be in relation to a
person as contrasted to search of premises, vehicles or
articles. This position was settled beyond doubt by the
Constitution Bench in Baldev Singh's case (7 supra).
Above being the position, the contention regarding non-
compliance with Section 50 of the Act is also without any
substance.
33) The Hon‟ble Supreme Court in State of Haryana v.
Jarnail Singh and others10 also by following earlier decisions
reiterated that Section 50 of the N.D.P.S. Act has no application
(2001) 3 SCC 28
(2004) 5 Supreme Court Cases 188
when the search of a Tanker was conducted because it was not
a personal search.
34) Even as evident from the judgment in Jarnail Singh's
case (10 supra), the factual matrix was that there was the
search of a tanker moving in the public highway. The Hon‟ble
Supreme Court categorically held at para No.6 as follows:
6. The same view has been reiterated in several decisions
of this Court including Kalema Tumba's case (6 supra),
Gurbax Singh's case (9 supra), Madan Lal vs. State of
H.P. 11 , Birakishore Kar vs. State of Orissa 12 and
Saikou Jabbi's case (8 supra). The language of Section
50 is clear and unambiguous and the law so well settled
that it is not possible to take a different view. We must,
therefore, hold that Section 50 of the NDPS Act did not
apply to the facts of this case, where on search of a
tanker, a vehicle, poppy husk was recovered. This not
being a case of personal search, Section 50 was not
applicable. Moreover, there was no prior information
regarding the contraband being carried in a vehicle, and
the recovery was the result of checking of the vehicle in
the normal course.
35) Apart from this, the Hon‟ble Supreme Court in State
of Rajasthan vs. Parmanand and another13 had an occasion
to refer the Constitutional Bench decision in Baldev Singh's case
(2003) 7 SCC 465
(2000) 9 SCC 541
(2014) 5 Supreme Court Cases 345
(7 supra). The Hon‟ble Supreme Court extracted the
observations 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
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.
36) The factual matrix in the above referred decision is
also that if merely a bag carried by a person is searched without
there being any search of his person, Section 50 will have no
application. But if bag carried by him is searched and his person
is also searched, Section 50 will have application.
37) It is to be noted that the decision of the Hon‟ble
Supreme Court in Parmanand's case (13 supra) was rendered on
28.02.2014. The decision of the Hon‟ble Supreme Court relied
upon by the learned counsel for the first appellant in Gurjant
Singh @ Janta's case (3 supra) was rendered on 28.10.2013.
The Hon‟ble Supreme Court in Gurjant Singh @ Janta's case (3
supra) distinguished the facts there under with that of Balbir
Singh's case (4 supra) on the ground that P.W.6 noticing that
there was gunny bags in the tractor felt the need to invoke
Section 50 of the Act and thereby to provide opportunity to the
appellant for holding in search in the presence of gazette officer
or a Magistrate and in such a scenario the principle in Balbir
Singh's case (4 supra) could not be applied.
38) Coming to the present case on hand it is not a case
where P.W.3 thought of to apply the benefit of Section 50 of the
Act to the accused because he thought of to search the bags in
possession of A.1 and A.2. It is not the case of the prosecution
that he tried to secure any gazette officer. Obviously, the
factual scenario in Parmanand's case (13 supra) cannot be
applied to the present case on hand.
39) Having regard to the well established judgments of
the Hon‟ble Supreme Court throughout consistently, this Court
would like to follow the judgment of the Hon‟ble Supreme Court
in Parmanand's case (13 supra) which is subsequent to Gurjant
Singh @ Janta's case (3 supra). In the light of the above, there is
no merit in the contention of the appellants that there is no
compliance of Section 50 of the Act. Absolutely, the case on
hand reveals that it is not at all a case where compliance of
Section 50 of the Act is necessary.
40) 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, this Court 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.]
41) 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.
42) Coming to the case on hand, as this Court already
pointed out there is nothing in the case of the prosecution that
they effected the recovery basing on prior information. Even it
is not the defence of the accused as such. So, absolutely, there
is no need or necessity to comply Section 42 of the Act.
43) Coming to Section 43 of the N.D.P.S. Act, it 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.]
44) 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.
45) Apart from this, the Hon‟ble Supreme Court in
Jarnail Singh's case (10 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."
46) There is no dispute that during routine vehicle
checking, the Excise police party detected the present case in
hand. Thus, it was in a public place. They served Section 165
Cr.P.C. search proceedings on the driver and thereafter they
searched the vehicle. Absolutely, there is nothing to show that
either Section 42 or Section 43 of the Act is violated.
47) This Court in Bosaga Suryakanth alias Suresh vs.
State of Andhra Pradesh14 and Sangula Rambabu vs. State
of A.P., rep. by the Public Prosecutor, High Court of A.P.15
by looking into the provisions of Section 50 of the Act and by
looking into the well established legal principles enunciated by
the Hon‟ble Supreme Court held that there is no need or
necessity to comply Section 50 of the Act when there is no
personal search.
48) Now this Court would like to deal with as to whether
on factual aspects whether the evidence adduced by the
prosecution before the learned I Additional Sessions Judge
regarding the manner in which they claimed to have seized the
2023 CRI.L.J.1696
2023(2) ALT (Crl.) 281 (A.P.)
Ganja is convincing or not. As seen from the evidence of P.W.1,
he testified about the travelling of A.1 and A.2 in their bus by
boarding at Vijayawada. He also confirmed about the police
checking at Khaja tollgate and seizure of the bags from the
accused and after opening that, they found Ganja. According to
him, Ex.P.1 is the positive photographs of four bags seized from
the possession of the accused. What he deviated from the case
of the prosecution is the so-called signing of the papers at the
police station. During cross examination by the learned
Additional Public Prosecutor, he confirmed that the contents of
Ex.P.2 are correct. Thus, the contents of Ex.P.2 are that
mahazarnama was prepared at the place of seizure. During
cross examination by the learned defence counsel again he
deposed that Ex.P.2 and samples were prepared at the police
station. Therefore, for the reasons best known to him, his
intention was to deviate in somehow or the other from Ex.P.2 as
to the place in which it was prepared. Hence, it all shows that
he exhibited negative attitude against the case of the
prosecution. When he knows that the contents of Ex.P.2 are
correct, he had no necessity to put his signature especially when
it was allegedly prepared at the police station. To the extent
P.W.1 supported the case of the prosecution can be taken into
consideration and his evidence is consistent with that of the
evidence of P.W.2 and P.W.3 insofar as the fact that the accused
boarded the RTC bus at Vijayawada and the police stopped the
bus at Khaja tollgate and found possession of bags with them.
49) Now, turning to the evidence of P.W.2, his evidence
reveals that everything was prepared at the place of recovery
only. His evidence is consistent with the evidence of P.W.3, the
Prohibition and Excise Inspector. He categorically deposed in
cross examination that they were there for half an hour at
tollgate and he signed on Ex.P.2 and M.O.1 at tollgate. It all
shows that Ex.P.2 was prepared at the place of recovery. It is
to be noted that according to the evidence of P.W.2, Ex.P.3 is
the two tickets purchased by the accused to travel from
Vijayawada. Nothing is suggested to P.W.1 and P.W.2 in cross
examination that accused did not board the RTC Bus at
Vijayawada and the police did not stop the bus at Khaja tollgate
for the purpose of checking the vehicle. On the other hand, a
vague suggestion is put forth before P.W.2 as if that police
seized nothing from the possession of the accused and the
accused are in no way concerned with the case. Similarly, a
suggestion is put forth before P.W.3 that they did not find Ganja
from the accused and they did not stop the bus and the accused
are in no way connected with this offence and they planted
M.O.1. P.W.2 and P.W.3 denied the respective suggestions. The
accused are not dare enough to suggest to P.W.1 to P.W.3 that
they did not travel in APSRTC bus driven by both P.W.1 and
P.W.2. So, the prosecution established cogently by virtue of the
above evidence that both the accused boarded at Vijayawada in
APSRTC and the said bus was stopped at Khaja tollgate,
Mangalagiri during routine checking. The evidence adduced by
the prosecution in this regard is fully believable.
50) According to the evidence of P.W.2 in chief
examination and cross examination, the police found the bags
from the upper rack on the seat of the accused. Basing on this,
the contention of the accused is that the Ganja was not
recovered in front of their legs and it was recovered from the
luggage stand, as such, the possession cannot be attributed
against them. It is to be noted that according to Ex.P.2-
mahazarnama, A.1 was sitting in Seat No.11 behind the
conductor seat. A.2 was setting in seat No.14 in the same row
behind the driver seat and the case of the prosecution as
evident from Ex.P.2 as well as the evidence of P.W.3 that bags
were found in front of the legs of the accused. Thus, if the
prosecution is able to prove that those four bags were found in
front of the legs of A.1 and A.2, conscious possession thereof
can be attributed against them. Insofar as the evidence of P.W.3
is concerned, it is consistent with the narration made in Ex.P.2
mahazarnama. It is to be noted that the learned defence
counsel cross examined P.W.3 and he deposed in cross
examination that as per Ex.P.2 they seized four bags at the seat
of the accused. Nothing is suggested to P.W.3 in the cross
examination by the learned defence counsel that those two bags
were seized from the luggage rack. Therefore, the accused failed
to confront with the evidence of P.W.3 that Ganja bags were
found in the luggage rack. On account of this, the discrepancy
between the evidence of P.W.2 and P.W.3 is of no use to the
defence of the accused. P.W.2 deposed contrary to the contents
of Ex.P.2-mahazarnama about place where the bags were lying.
Apart from this, as evident from Ex.P.1-photograph and
Ex.P.12-photographs, four bags are in big size and it is
impossible to assume that those bags could be put in the
luggage rack which is upper on the seats of the accused. Apart
from this, a person who is carrying the contraband like Ganja in
four big bags would not prefer to keep in the luggage rack, but
he would like to keep the same within his controlled possession
as A.1 and A.2 did by keeping the same in front of their legs. If
Ex.P.1 and Ex.P.12 are looked into, it is very difficult to assume
that they were seized from the luggage stand. Therefore, all
these go to show that on account of the above discrepancy
between the evidence of P.W.2 and P.W.3, the case of the
prosecution cannot be thrown out. This discrepancy is not going
to affect the case of the prosecution in any way on account of
the reasons furnished supra.
51) The evidence of P.W.3 reveals that after production
of the accused before the learned jurisdictional Magistrate, he
submitted the case property along with samples to the Court.
Further he prepared inventory proceedings. He also sent a
preliminary report to the superiors as regards the recovery on
the same day. Through him in this regard Ex.P.7-the preliminary
report and Ex.P.8-memo under Section 52(A) are marked.
Further the jurisdictional Magistrate sent inventory accepted
letter under Ex.P.10 to the trial Court. He sent samples under
Ex.P.11-letter of advice to the analyst and Ex.P.12 is the
analysis report. Thus, with regard to the above said
investigation done by P.W.3, there is no cross examination
pointing out any infirmity in the case of the prosecution.
52) In the light of the above, the evidence of P.W.2 and
P.W.3 is consistent. There are no doubtful circumstances to
disbelieve the case of the prosecution.
53) Except a vague plea that a false case is foisted
against the accused and that nothing is recovered from their
possession, accused have no probable say throughout trial. The
place of recovery is said to be in RTC bus which was running
from Vijayawada to Tirupati. A.1 is resident of Bheemavaram,
West Godavari District. A.2 is resident of Ananthasagaram
Mandal, Nellore District. They have not put forth any
circumstances before P.W.3 explaining the circumstances in
which they came into custody of the Prohibition and Excise
Police. Therefore, all these circumstances quietly establish the
presence of the accused in APSRTC bus and this Court does not
find any doubtful circumstances in this regard. The evidence of
P.W.2 and P.W.3 consistently establishes the recovery of four
bags from the possession of the accused. According to Ex.P.12-
analysis report, the samples are of Ganja. Hence, by relying
upon the evidence of P.W.2 and P.W.3 coupled with Ex.P.12-
chemical analysis report, prosecution established that the
samples that were drawn from the bags found in possession of
the accused contained Ganja. So, as the prosecution could
establish the recovery of contraband from the possession of the
accused, there are certain presumptions in favour of the
prosecution in view of the provisions of the NDPS Act.
54) 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 Madan Lal's case (11 supra)
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.
55) 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.
56) 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.
57) Having regard to the above, this Court is of the
considered view that the prosecution before the learned I
Additional Sessions Judge cogently established about the
recovery of the contraband i.e., Ganja from the possession of
A.1 and A.2 beyond reasonable doubt. As pointed out, according
to Ex.P.12-analysis report, the samples are of Ganja. The
prosecution did establish the link between M.O.1 with that of
Ganja that was seized from the accused. In my considered view,
the learned I Additional Sessions Judge rightly appreciated the
evidence on record on factual and legal aspects and found guilty
of the accused. It is a case where both the accused boarded
RTC bus at one and same time and they were sitting in the RTC
bus very close with each other. They were keeping Ganja bags
in front of them. All these shows that both the accused were
found in conscious possession of Ganja of 15 kgs x 15 kgs which
amounts to commercial quantity of Ganja. 30 Kgs of Ganja
seized together from both the accused can be attributed with
them and it amounts to commercial quantity. The learned I
Additional Sessions Judge imposed the minimum punishment as
provided under law keeping in view of the punishment provided
for the offence under Section 8(c) r/w Section 20(b)(ii)(C) of the
Narcotic Drugs and Psychotropic Substance Act, 1985.
58) Viewing from any angle, this Court does not find any
tenable reasons to interfere with the judgment of the I
Additional Sessions Judge.
59) In the result, the Criminal Appeal is dismissed, as
such, the judgment, dated 19.03.2010 in Sessions Case No.2 of
2010, on the file of I Additional Sessions Judge, Guntur shall
stand confirmed.
60) The Registry is directed to take steps immediately
under Section 388 Cr.P.C. to certify the judgment of this Court
to the trial Court on or before 19.10.2023 and on such
certification, the trial Court shall take necessary steps to carry
out the sentence imposed against A.1/first appellant and to
report compliance to this Court.
61) The A.1/first appellant is directed to surrender
before the Court below on or before 19.10.2023 and on such
surrender, the learned I Additional Sessions Judge shall take
necessary steps to entrust the conviction warrant. If A.1 fails to
surrender on or before 19.10.2023, the learned I Additional
Sessions Judge shall issue Non Bailable Warrant and shall take
necessary steps to carry out the sentence imposed against him.
62) The Registry is directed to forward the record along
with copy of the judgment to the I Additional Sessions Judge,
Guntur with special messenger on or before 19.10.2023 and
thereupon, the I Additional Sessions Judge shall send a copy of
the judgment to the second appellant who is lodged in Central
Prison, Rajahmundry.
Consequently, miscellaneous applications pending, if any,
shall stand closed.
________________________
JUSTICE A.V. RAVINDRA BABU
Dt. 12.10.2023.
Note: L.R. copy be marked.
B/o
PGR
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRL. APPEAL NO.692 OF 2010
Note:-
Registry is directed to forward
the record along with copy of the
judgment to the I Additional Sessions
Judge, Guntur with special messenger
on or before 19.10.2023.
Date: 12.10.2023
LR copy be marked.
PGR
