Telangana High Court
J.Laxmi , Bhavani vs The State Of Telangana on 23 November, 2023
THE HONOURABLE SMT. JUSTICE K. SUJANA
CRIMINAL APPEAL No.360 of 2019
JUDGMENT:
Aggrieved and dissatisfied with the Judgment dated 10.04.2019
in S.C.No.743 of 2017 passed by the learned Metropolitan Sessions
Judge, Hyderabad, the present Criminal Appeal is filed.
2. The trial Court convicted the appellant/accused No.2 for the
offence punishable under Sections 8 (c) read with 20 (b) (ii) (B) of the
Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced
him to undergo rigorous imprisonment for 18 months and also to pay
a fine of Rs.1,000/- in default of payment of fine to suffer simple
imprisonment for a period of one (1) month. The remand period
undergone by appellant/accused No.2 was set off under Section 428 of
Cr.P.C.
3. Heard Smt. P.S. Bhramaramba Devi, learned counsel for the
appellant as well as learned Assistant Public Prosecutor for the
respondent.
4. Learned counsel for the appellant would submit that the
appellant/accused No.2 is a lady and she is innocent. She doesn't
know anything about the offence and she is falsely implicated in the
said case. According to the prosecution, accused No.1 and this
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appellant were held in possession of 16 K.Gs of Dry Ganja without any
license or permit, which is not the commercial quantity. As the
appellant is innocent, prayed the Court to set aside the judgment by
acquitting the appellant/accused No.2.
5. On the other hand, learned Assistant Public Prosecutor would
submit that the offence is against the State and this appellant was
found in possession of 16 K.Gs of Dry Ganja and the prosecution
proved the case by examining P.Ws.1 to 4 and also got marked Exs.P1
to P10 and M.Os.1 to 4. As such, there are no merits in the case and
prayed the Court to dismiss the appeal.
6. The case of the prosecution is that on 03.08.2017 at about 15:45
hours, Sri K.V. Laxminarayana/Sub-Inspector of Police/P.W.1 along
with his staff were on patrolling duty at Dhoodh Khana, Dilawargunj,
Mangalhat, noticed accused Nos.1 and 2 with two gunny bags. On
enquiry, they admitted that they are coming from Visakhapatnam to
Hyderabad by carrying the ganja to sell/deliver to their
customers/accused Nos.3 and 4. Basing on the complaint of P.W.1,
P.W.4 registered a case and investigated the same. In the presence of
P.W.2, P.W.4 checked the bag in the hands of accused No.1 and found
10 Kgs of Ganja and one cell phone, drawn two samples (50 grams
each) and recorded the confession-cum-seizure Panchanama/Ex.P4.
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He also checked the bag in the possession of accused No.2 and found
6 Kgs of Ganja, drawn two samples (50 grams each) and recorded the
confession-cum-seizure panchanama/Ex.P5.
7. Basing on the confession, Dry Ganja was seized and samples
were taken under M.Os.1 to 4. Except the suggestion, nothing was
elicited in cross-examination. P.W.2 deposed that on 03.08.2017 at
about 04:10 p.m., he was summoned by P.W.4 to act as Pancha to
recover Dry Ganja from the possession of accused Nos.1 and 2.
Accused Nos.1 and 2 gave consent, to be searched before Gazetted
Officer, acknowledgment was taken and P.W.4 searched and found 10
Kgs of Dry Ganja from that bag in the presence of the accused and
drawn two samples containing 50 grams each and remaining ganja
was also seized separately. 6 Kgs of Ganja seized from the bag in the
possession of accused No.2 and out of it, samples of (50 grams each)
Ganja was seized. P.W.2 was not cross examined by the appellants.
8. P.W.3 is panchnama witness and his evidence is that on
03.08.2017 at about 04:30 p.m., Police found two persons, who are
wife and husband and taken them into custody. He identified accused
No.2 as the person who was in custody and was in possession of
Ganja in a plastic bag. Nothing was elicited in cross examination to
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deprive the case of the prosecution. P.W.4 who is the investigating
officer deposed about the investigation done by him.
9. Learned counsel for the appellant contended that seizure was
not according to the procedure established by law, whereas, they
seized ganja from the appellant in a public place. Therefore,
contemplation under Section 42 of the NDPS Act will not be applicable
and the same is confirmed by the High Court in case between
"Narayana Swamy vs. Assistant Director, Directorate of Revenue
Intelligence 1".
10. The trial Court relied on the judgments of High Court between
Bodapan Sunder Singh Vs. State of AP 2 and Hon'ble Supreme
Court between State of Punjab Vs. Baldev Singh 3. According to the
said judgments, when there is a search of a person only the procedure
contemplated under Section 50 of the Act has relevance
distinguishable from search of any place.
11. Admittedly, this appellant was found holding the bag wherein
the contra band is found. Therefore, the situation will not amount to
the personal search. As such, the contemplation under Section 50 of
2003 Crl.L.J., SC 27
2001 (2) ALD (Crl.) 928
(1999) 6 SCC 172
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the Act that the accused has to be searched before Gazetted Officer or
the Magistrate will not arise.
12. Considering the above facts and evidences, the trial Court came
to a conclusion that accused No.2/appellant found with contra band
of 6 Kgs of Ganja in a plastic gunny bag and all the mandatory
procedure was followed by the investigating agency. As such,
convicted the appellant for the offence punishable under Sections 20
(b) (ii) (B) of the NDPS Act. Though the counsel for the appellant
argued that this appellant is falsely implicated, no grounds were made
out to prove the false implication of this appellant and the evidence on
record is sufficient to prove the guilt of the appellant. As such, there
are no infirmities in the judgment of the trial Court. The Judgment of
the trial Court is hereby confirmed. Hence, the conviction imposed by
the trial Court is confirmed and the sentence is reduced to the period
already undergone by the appellant.
13. In the result, the appeal is allowed in part and the judgment
dated 10.04.2019 in S.C.No.743 of 2017 passed by the learned
Metropolitan Sessions Judge, Hyderabad is modified. However, the
appellant/accused No.2 is in jail since the date of conviction i.e., one
year two months, as such, the sentence imposed on her is reduced to
the period already under gone by her. The appellant/accused is set at
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liberty forthwith, if she is not required in any other case or crime. The
bail bonds of the appellant/accused No.2 shall stand cancelled.
As a sequel, miscellaneous petitions, pending if any, shall stand
closed.
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K.SUJANA, J
DATE: 23.11.2023
SAI
