Between vs The State Of Andhra Pradesh
2023 Latest Caselaw 3969 AP

      HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

                             ****

CRIMINAL APPEAL No.1217 OF 2010 Between:

Kalavakollu Jyothi, W/o Srinivasa Rao, Aged 38 years, Uppara of Venigandla Village, Pedda Kakani Mandal, Guntur District. ... Appellant/Accused.

Versus

The State of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of Andhra Pradesh. ... Respondent/Complainant.

DATE OF JUDGMENT PRONOUNCED : 01.09.2023

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.1217 OF 2010

% 01.09.2023 # Between:

Kalavakollu Jyothi, W/o Srinivasa Rao, Aged 38 years, Uppara of Venigandla Village, Pedda Kakani Mandal, Guntur District. ... Appellant/Accused.

Versus

The State of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of Andhra Pradesh. ... Respondent/Complainant.

! Counsel for the Appellant : Sri A. Rama Krishna, representing Sri K. Arjun Chowdary.

^ Counsel for the Respondent : Public Prosecutor

< Gist:

> Head Note:

? Cases referred:

2007 CRI.L.J. 106 AIR OnLine 2020 Chh 289 (2000) 10 Supreme Court Cases 429 AIR 2017 Supreme Court 3751 2001(2) ALD (Crl.) 928 (AP) (1999) 6 SCC 172 2004 (14) ILD 271 AIR 2004 Supreme Court 2491 2003 (11) ILD 491 SC

This Court made the following:

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

CRIMINAL APPEAL NO.1217 OF 2010

JUDGMENT:-

Challenging the judgment, dated 14.10.2010 in Sessions

Case No.6 of 2010 (NDPS Act), on the file of I Additional

Sessions Judge, Guntur, the unsuccessful accused filed the

present Criminal Appeal.

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 unsuccessful accused faced charge under

Section 8(c) r/w Section 20(b)(ii)(B) of the Narcotic Drugs and

Psychotropic Substance Act, 1985 ("NDPS Act" for short) for

alleged possession of 3 Kgs. of Ganja on 12.06.2010. The

learned I Additional Sessions Judge, Guntur on conclusion of the

trial, found the accused guilty of the charge, convicted her under

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

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

quantum of sentence, sentenced her to undergo rigorous

imprisonment for 10 years and to pay a fine of Rs.1,00,000/-, in

default to suffer simple imprisonment for two years. Felt

aggrieved of the same, the unsuccessful accused, filed the

present Criminal Appeal.

4) The case of the prosecution, in brief, as set out in

the charge sheet pertaining to PR.No.20/2010-11 of Prohibition

& Excise Station, Guntur, is as follows:

(i) The accused is resident of Venigandla, Pedakakani

Mandal. The place of offence is located at the stones heap

behind Milk Society, Venigandla, which is situated on the left

side of the road that leads from Pedakakani to Venigandla.

(ii) On 12.06.2010 L.W.3-Shaik Syda, Prohibition & Excise

Head Constable, Enforcement, Guntur, L.W.4-P.V. Seshaiah,

Prohibition & Excise Sub Inspector, Enforcement, Guntur and

L.W.5-N. Thirupathiah, Prohibition & Excise Inspector,

Enforcement, Guntur, conducted patrolling duty to detect the

Prohibition & Excise Offences. At about 1-00 p.m., they reached

the place of offence i.e., the stones heap behind Milk Society,

Venigandla, which is situated on the left side of the road that

leads from Pedakakani to Venigandla and found the accused in

possession of white colour plastic gunny bag at her feet. On

seeing the excise officials, the accused tried to escape. The

excise officials detained her with the help of staff. On

questioning, the accused revealed that the gunny bag contains

Ganja. Then, L.W.5 sent L.W.3 to bring mediators. After 20

minutes, L.W.3 brought L.W.1-D. Srinivasa Rao, V.R.O., In-

charge of Venigandla and L.W.2-B. Suresh Kumar, Village

Secretary, Venigandla, to act as mediators. The accused

revealed her identity particulars on questioning about the

commission of offence. The Prohibition & Excise Inspector,

Enforcement, Guntur-L.W.5, has intimated to the accused about

the procedure under Section 50 of the N.D.P.S. Act, for which

the accused expressed her unwillingness for search before a

Gazetted Officer. Then, L.W.5 secured the weighing instrument

through L.W.4. Then they opened the gunny bag and found

leaves, flowers, barks, seeds along with dry Ganja. On weighing,

it was found to be 3 Kgs. of Ganja. L.W.5-Prohibition & Excise

Inspector, separately drawn 100 grams of Ganja into a separate

packet, sealed and affixed identity slips to the samples in gunny

bag. He seized the same and arrested the accused under the

cover of mahazarnama. L.W.6-G. Dwarakanath, Prohibition &

Excise Inspector, registered the mediators report vide PR.No.20

of 2010-11 under Section 8(c) r/w 20 (b)(ii) (B) of N.D.P.S. Act,

1985 and forwarded the accused to the remand. The sample

was sent to the chemical analysis and the analyst opined that it

is of Ganja. Hence, the accused rendered herself liable for

punishment under the above provision of law.

5) The learned I Additional Sessions Judge, Guntur,

took cognizance of the case under the above provisions of law.

After appearance of 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)(B) of N.D.P.S Act

against the accused, explained to her in Telugu, for which she

pleaded not guilty and claimed to be tried.

6) To bring home 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.7 and M.O.1 and M.O.2. 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 by

the prosecution, for which she denied the same and she stated

that she has no defence witnesses and she has nothing to say.

7) 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.

After questioning her about the quantum of sentence, the

learned I Additional Sessions Judge, Guntur, sentenced her to

suffer rigorous imprisonment for 10 years and to pay a fine of

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

years.

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

determination are as follows:

(1) Whether the prosecution proved before the trial Court that the accused was found in possession of 3 Kgs. of Ganja on 12.06.2010 at 1-00 p.m., in contravention of the provisions of NDPS Act?

(2) Whether the prosecution before the trial Court proved the charge against the accused beyond reasonable doubt?

(3) Whether the judgment, dated 14.10.2010 is sustainable under law and facts and whether there are any grounds to interfere with the same?

POINT NOS.1 TO 3:-

9) Turning to the evidence of P.W.1, he is the then

VRO, Venigandla. According to him, he knows the accused. On

12.06.2010 excise officials apprehended the accused for

possession of Ganja. Inspector, Prohibition & Excise and Sub

Inspector came on a Jeep to their Panchayat Office at about

1-10 noon and took him to Venigandla, besides Milk Society.

Then they found a bundle of Ganja. It was weighed and it was

found 3 Kgs. 100 grams of Ganja was lifted for sample and

sample was packed. Ex.P.1 is the panchanama in which he and

others signed. M.O.1 is sample. Ex.P.2 is the photograph of

bundle of Ganja bag found by them. Ex.P.1 proceedings took

place for one hour from 1-30 noon. They found different parts of

Ganja plants in Ex.P.2 bundle.

10) P.W.2, the then Prohibition & Excise Inspector,

deposed that on 12.06.2010 at 1-00 noon, they found the

accused setting near heap of stones with a bundle, behind Milk

Society, Venigandla. The accused got perturbed on seeing them.

They detained her. She revealed about her identity and that

gunny bag contains Ganja. Then he sent Head Constable to

secure the mediators. The Head Constable secured P.W.1 and

the village servant of Venigandla after 15 minutes. The accused

was informed about her right under Section 50 of the NDPS Act,

but she declined to avail. Then, they opened the Ganja bag and

found different parts of the Ganja plants in the bundle. Then he

deputed Prohibition and Excise Sub Inspector, P.V. Seshaiah to

secure a weighing instrument. He secured the weighing

instrument. They weighed and found 3 Kgs of Ganja. The

accused revealed her identity. He lifted a sample of 100 grams

from the bundle of Ganja. M.O.1 is the sample. He attached to

identity slips with his signature and seal and signatures of the

mediators and thumb impression of the accused on the sample.

Ex.P.2 is the photograph of the bundle. Then he arrested the

accused and seized the property under Ex.P.1 and handed over

the same to Inspector, Prohibition & Excise, Guntur.

11) P.W.3 is the then Prohibition & Excise Inspector, who

registered the FIR. According to him, on 12.06.2010 at 3-30

p.m., excise officials attended police station and handed over

mediators report (Ex.P.1), the accused, the contraband and the

samples. Then he registered the mediators report as a case in

Crime No.20/2010-11 and issued FIR. He also sent the accused

to the Court for remand. Ex.P.3 is the FIR. He forwarded the

samples to the chemical examiner through the I Additional

District Judge, Guntur. The chemical examiner sent his report

under Ex.P.4. Ex.P.6 is the letter of advice. Chemical examiner

report revealed that the sample is of Ganja. The photographs

were taken at the time of samples. M.O.2 is the representative

sample. Ex.P.7 is the inventory proceedings along with property.

12) Sri A. Rama Krishna, learned counsel, representing

the learned counsel for the appellant Sri Kolluri Arjun Chowdary,

would contend that there is a serious violation of Section 50(4)

of the NDPS Act. The case of the prosecution is that the

accused was found in possession of 3 Kgs. of Ganja in the gunny

bag. The prosecution miserably failed to follow the mandatory

provisions of Section 50 of the NDPS Act. The prosecution did

not secure the presence of any Gazetted Officer to witness the

recovery. Apart from this, the accused is a female. The raid

party consists of only male members. No female staff was

present in the raid party. According to Section 50(4) of the

NDPS Act, whenever the search of a person is required and the

person is of female, search shall be conducted by female.

Therefore, there is a serious violation of Section 50(4) of the

NDPS Act. Apart from this, even communication to the accused

about the proposed compliance of Section 50 of the NDPS Act is

not done properly. In support of his contentions, he would rely

upon the decisions in (1) Dinesh Palyekar vs. State of Goa1

(2) Sangeeta Das Alias Savita Das vs. State of

Chhattisgarh2, (3) State of Punjab vs. Surinder Rani Alias

Chhindi 3 and (4) Krishna Chand vs. State of Himachal

Pradesh4.

13) The learned counsel for the appellant would further

contend that P.W.3 is a stock mediator, who used to support the

case of the prosecution whenever he cited as a witness and the

evidence of P.W.1 and P.W.2 suffers with inconsistency and

failure to follow the mandatory provisions of NDPS Act enables

the accused claim of acquittal. The learned I Additional Sessions

Judge, Guntur, did not appreciate the evidence properly. P.W.1

to P.W.3 are the interested witnesses and their evidence cannot

2007 CRI.L.J. 106

AIR OnLine 2020 Chh 289

(2000) 10 Supreme Court Cases 429

AIR 2017 Supreme Court 3751

be believed. He would further submit that the accused is entitled

for acquittal.

14) Sri N. Sravan Kumar, learned Special Assist. to the

Public Prosecutor, would contend that the recovery of

contraband was from the gunny bag of the accused. There was

no personal search of the accused. So, the compliance of

Section 50 of the NDPS Act was not necessary. Though Section

50(4) contemplates the search of a female person shall be by a

female officer, but there is no search of the accused by the

excise party. When Section 50 of the NDPS Act has no

application, as the contraband was recovered from the gunny

bag of the accused cannot contend that search was not

conducted by a female officer. He would further submit that the

evidence of P.W.1 and P.W.2 is consistent thoroughly and the

prosecution established the charge against the accused beyond

reasonable doubt, as such, the appeal is liable to be dismissed.

15) Sri A. Rama Krishna, learned counsel, representing

the learned counsel for the appellant, would submit during the

course of reply that after conviction and sentence by the learned

I Additional Sessions Judge, Guntur, the accused underwent

imprisonment for a period of two years and after that the bail

was granted by the Court and it may be taken into

consideration.

16) The substance of the allegation in the case of the

prosecution is that the accused was found in possession of 3

Kgs. of Ganja in a gunny bag, near the stones heap behind Milk

Society, Venigandla at about 1-00 p.m. on 12.06.2010 and that

the police lifted sample of 100 grams from the total extent of 3

Kgs. and that the sample was sent to chemical analysis. It

proved that it is of Ganja. So, the prosecution claimed that the

gunny bag which was in possession of the accused was searched

and it contained 3 Kgs. of Ganja. The prosecution did not allege

either from Ex.P.1 or from the contents of the charge sheet that

there was a recovery of Ganja on search of the person of the

accused.

17) In the light of the contentions advanced by the

learned counsel for the appellant, now it becomes necessary to

deal with as to whether compliance of Section 50 of the NDPS

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 NDPS 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.]

18) 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.

19) 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

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 Singh6. 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.

20) In Saikou Jabbi vs. State of Maharashtra in

Criminal Appeal No.103 of 20037, the Hon‟ble Supreme Court

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

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

(1999) 6 SCC 172

2004 (14) ILD 271

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.

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

Jarnail Singh and others 8 also by following earlier decisions

reiterated that Section 50 of the N.D.P.S. Act has no application

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

a personal search.

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

AIR 2004 Supreme Court 2491

(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.

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

Section 50 of the NDPS 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 gunny bag of the accused, as

such, there is no violation of Section 50 of the Act.

24) Now, coming to the case of the prosecution, Ex.P.1

whispers that after securing the presence of P.W.1 when P.W.2

claimed to have asked the accused whether she would like to be

searched before the Gazetted Officer, she declined for doing so.

It is to be noticed that as this Court already pointed out there

was no personal search of the accused, as such, in view of the

settled legal position as above, compliance of Section 50 of the

NDPS Act is not necessary. However, P.W.2 appears to have

posed a question to the accused under an erroneous imprison

that he has to comply Section 50 of the Act, for which the

accused expressed her unwillingness for search before the

Gazetted Officer. The erroneous impression formed by P.W.2

does not create any favourable circumstances to the accused to

claim the compliance of Section 50 of the Act is mandatory.

25) As this Court already pointed out, in the light of

settled legal position as above, absolutely, whenever there was

a personal search, only compliance of Section 50 of the NDPS

Act would arise. There is no dispute that there was no personal

search of the accused. On the other hand, the case of the

prosecution was that the accused was in possession of a gunny

bag and gunny bag was searched. Hence, absolutely, this Court

is of the considered view that the compliance of Section 50 of

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

referred to above, was not at all necessary and the investigating

officer was not at all supposed to comply it.

26) Now, the crucial contention of the accused is that

under Section 50(4) of the NDPS Act whenever a female is to be

searched, it is to be done by a female police officer and as the

raid party was not with any female excise officials, the

conviction is vitiated.

27) Now, this Court would like to deal with the citations

relied upon by the learned counsel for the appellant. In Dinesh

Palyerkar's case (1 supra), the investigating officer intimated to

accused about his right to be searched before the Gazetted

Officer or Magistrate. The Hon‟ble Supreme Court held that mere

statement that he is being searched before such Officer is not at

all sufficient. What is necessary was that the accused (suspect)

should be made aware of the existence of his right to be

searched in the presence of one of the officers named in the

section itself. The facts in Dinesh Palyerkar's case (1 supra) are

such that there was no proper compliance of Section 50 of the

NDPS Act, though its compliance was mandatory. In the present

case compliance of Section 50 of the Act is not at all necessary,

as such, the above said decision is of no use to the defence of

the appellant.

28) Turning to Sangeeta Das's case (2 supra), the male

investigating officer made search of female accused and found

Ganja in her possession. The Chhattisgarh High Court dealing

with Section 50(4) of the NDPS Act providing that no female

shall be searched by anyone excepting a female and relying

upon Punjab vs. Surinder Rani alias Chhidi [(2000) 10 SCC

429] held that search is vitiated.

29) Turning to Surinder Rani alias Chhindi's case (3

supra), the Hon‟ble Supreme Court dealt with a situation that

5.990 Kgs. opium was found when her person was searched.

Apart from this, there was no female at the time of search.

Hence, the Hon‟ble Supreme Court found favour with the case of

the defence and held that the search is vitiated.

30) Coming to the present case on hand, firstly, Section

50 of the NDPS Act has no application whatsoever because there

was no personal search of the accused. Neither Ex.P.1 nor the

evidence of P.W.1 and P.W.2 disclose that the accused was

searched personally. Even it is not the case of the prosecution

that on personal search of the accused, Ganja was recovered. As

held by the Hon‟ble Supreme Court, Section 50 of the NDPS Act

has no application when the body of the accused was not

searched. Hence, when the compliance of Section 50 of the Act

is not necessary in this case and there is no personal search of

the accused, the decisions of Sangeeta Das alias Savita Das (2

supra) and Surinder Rani alias Chhindi (3 supra) are of no use to

the appellant.

31) Turning to another decision in Krishan Chand's case

(4 supra), the facts were that the accused was found in

possession of 7 Kgs. of charas while he was carrying it and

police officials in the morning effected recovery without joining

any independent witnesses. Under the above said

circumstances, the Hon‟ble Supreme Court found favour with the

defence of the accused.

32) Coming to the present case on hand, P.W.1 is no

other than an independent witness. The case of the prosecution

is that on spotting the accused, P.W.2 secured the persons of

P.W.1 and another as mediators. So, the factual matrix in

Krishan Chand's case (4 supra) cannot be made applicable to

the present case on hand.

33) As the prosecution did not prove the presence of the

male members in the raid party, this Court with extra care and

caution looked into as to whether the arrest of the accused was

prejudiced in any way. Section 46 of the Code of Criminal

Procedure runs as follows:

46. Arrest how made.

(1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.

(3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.

Absolutely, there is no cross examination of P.W.2, the

person who arrested the accused pointing out any illegality or

irregularity in arresting the accused with reference to Section 46

of the Code of Criminal Procedure. The proviso to Section 46

contemplates that where a woman is to be arrested unless the

circumstances indicate to the contrary her submission to custody

on an oral intimation of arrest shall be presumed and unless the

circumstances otherwise requires or unless the police officer is a

female, the police officer shall not touch the person of the

woman for making her arrest. It is not the case of the accused

before P.W.2 that he violated Section 46 proviso. So, the

statutory presumption under Section 46 proviso is that the

accused submitted herself to the custody for arrest on oral

intimation of arrest. Though this aspect was not raised by the

appellant during the course of trial or in the appeal, but as there

were no female members in the raid party, this Court has

examined the issue and did not find anything whatsoever to say

that the arrest is vitiated.

34) Now, it is a matter of appreciation as to whether the

evidence adduced by the prosecution would prove the recovery

of 3 Kgs. of Ganja from the accused in the manner as alleged.

P.W.1 the mediator and P.W.2 the Excise Inspector, supported

the case of the prosecution. Both of them testified about the

place of offence as well as recovery of the contraband. During

the course of cross examination, P.W.1 deposed that he signed

on Ex.P.1 as VRO. It was drafted by the Sub Inspector. He had

prior acquaintance with the accused even before the date of

Ex.P.1. The bag is of white colour and of 25 Kgs. None of the

villagers gathered on the spot at the time of Ex.P.1. There were

residential houses around the Milk Society. He denied that

nothing took place in his presence and that he does not know

anything about this case and that he is deposing false.

35) Turning to the cross examination of P.W.2, he

deposed that he had no prior information that the accused was

selling Ganja. He was in Venigandla for about one and half hour.

Nobody informed him during that period the accused was selling

Ganja. Other than the mediators and his staff, none were

present at the time of Ex.P.1. The case was registered by I Town

S.I. He denied that the accused was not informed under Section

50 of the NDPS Act about her right and that a false case is

foisted.

36) As seen from the cross examination part of P.W.1

and P.W.2, absolutely, there were no discrepancies elicited.

They categorically testified the presence of the accused at the

place of seizure and recovery of Ganja from the gunny bag. The

accused had no probable defence as to the manner in which she

came into the custody of the police. Consistently, the evidence

of P.W.1 and P.W.2 establishes the presence of the accused at

the place of seizure and the recovery of contraband from the

gunny bag which was found in possession of the accused. P.W.3

is the person, who registered the mediators report, as a case

and sent FIR to the Court and further samples to the chemical

analysis. According to Ex.P.4, the sample is of Ganja. M.O.1 is

the sample. M.O.2 is the representative sample. It is not a

case where the raid party proceeded to the place of seizure on

prior information. During patrolling duties only they found the

accused near heap of stones by keeping a gunny bag in front of

her and on seeing the police, she tried to abscond. Therefore,

the prosecution established the conscious possession of Ganja

with the accused. It is not the case of the accused that she had

no knowledge about the contents of gunny bag. It is not the

case of the accused that she did not try to abscond on seeing

the excise police officials. The accused had no probable defence

whatsoever. Her presence at the place of occurrence and her

coming into the custody of the police, in the manner as stated

by P.W.1 and P.W.2 was not shaken in their cross examination.

Ex.P.1 contained the purported thumb impression of the accused

and the accused had no probable defence explaining the manner

in which she put her thumb impression.

37) Having regard to the above, the evidence of P.W.1

and P.W.2 was not at all shaken during the cross examination.

Therefore, the prosecution cogently established before the

learned I Additional Sessions Judge, Guntur that on 12.06.2010

at 1-00 p.m., they found the accused in possession of 3 Kgs. of

Ganja.

38) At this juncture, it is relevant to look into certain

presumptions as contemplated under Section 35 of the NDPS

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.

39) According to Section 54 of the NDPS 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 she fails to account satisfactorily.

40) It is no doubt true that the presumption under

Section 54 of the NDPS 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.

41) In the light of the above, the evidence on record

squarely proves about the recovery of 3 Kgs. of Ganja from the

possession of the accused at the place of seizure. According to

Ex.P.4, the sample that was tested by the laboratory was of

Ganja. The prosecution established the link between M.O.1 with

that of the Ganja which was found in possession of the accused

in the gunny bag. The learned I Additional Sessions Judge,

Guntur, rightly dealt with the contentions raised by the accused

before the trial Court with appropriate reasons and appreciated

the evidence on record with sound reasons and rightly found the

accused guilty.

42) Now, turning to the sentence part, one cannot deny

the fact that the quantity of 3 Kgs. of Ganja is not commercial

quantity. It is only in respect of the commercial quantity of

Ganja, minimum punishment of 10 years and minimum fine of

Rs.1,00,000/- is provided. In respect of the lesser than the

commercial quantity, the penal provision is Section 8(c) r/w

20(b)(ii)(B) of N.D.P.S. Act, 1985 which provides the

punishment up to 10 years and fine up to Rs.1,00,000/-.

Therefore, there is no minimum punishment when the quantity

of Ganja is lesser than the commercial quantity. The trial Court

questioned the accused about the quantum of sentence, for

which the accused stated that she and her husband are suffering

with ill-health. The learned I Additional Sessions Judge, Guntur,

having made a finding that there are no mitigating

circumstances, was of the view that the punishment which is

prescribed under law is to be imposed. In my considered view,

when the quantity of Ganja was lesser, than the commercial

quantity and the quantity of Ganja was of 3 Kgs. subjecting the

accused to the maximum punishment is nothing but harsh. The

learned counsel for the appellant during the course of hearing

canvassed that the accused served out sentence of two years

and after that she was granted with bail and it may be

considered while deciding this appeal.

43) It is to be noticed that the judgment of the trial

Court was on 14.10.2010. The accused filed this appeal in the

year 2010 itself and got the order suspending the sentence of

imprisonment on 19.10.2010 itself. So, it is not borne out by the

record that after undergoing imprisonment for two years only

the accused got the bail. However, if the appellant already

undergone imprisonment for two years, it will be duly taken into

consideration at appropriate stage by the trial Court while re-

entrusting the conviction warrant. Under the circumstances, I

am of the considered view that overall findings of the learned I

Additional Sessions Judge, Guntur in convicting the accused are

tenable under law and facts, but the sentence of imprisonment

imposed against the accused i.e., 10 years and fine of

Rs.1,00,000/- is nothing but harsh which is to be reduced

appropriately.

44) In the result, the Criminal Appeal is allowed in part,

modifying the rigorous imprisonment of 10 years imposed

against the accused to that of four (04) years and further

modifying the fine of Rs.1,00,000/- to that of Rs.25,000/-

(Rupees twenty five thousand only) and modifying default

sentence as to that of six (06) months instead of two years. The

rest of the judgment of the learned I Additional Sessions Judge,

Guntur, in other aspects shall stands confirmed.

45) 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 08.09.2023 and on such

certification, the trial Court shall take necessary steps to carry

out the modified sentence by issuing a Non-Bailable Warrant

against the appellant and to report compliance to this Court.

46) The Registry is directed to forward the record along

with copy of the judgment to the trial Court as above without

fail on or before 08.09.2023 by a special messenger in the name

of the Presiding Officer of the Court.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU

Dt. 01.09.2023.

Note: L.R. copy be marked.

B/o PGR

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

CRL. APPEAL NO.1217 OF 2010

Note:-

Registry to circulate a copy of this judgment to the trial Court on or before 08.09.2023 by a special messenger in the name of the Presiding Officer of the Court.

Date: 01.09.2023

PGR