Sri Dharavath Sathish vs The State Of T.S
2023 Latest Caselaw 2101 Tel

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             HIGH COURT FOR THE STATE OF TELANGANA
                          AT HYDERABAD
                               *****

Criminal Appeal No.32 OF 2021

Between:

Sri Dharavath Sathish ... Petitioner/Accused No.2

And The State of T.S, Rep. by its Public Prosecutor , High Court of T.S, Hyderabad,(Through P.S. Bhadrachalam Town) ...Respondent/Complainant

Criminal Appeal No.76 OF 2021 Between:

Sri Amgoth Nagaraju ...Petitioner/Accused No.1

And The State of T.S, Rep. by its Public Prosecutor, High Court of T.S, Hyderabad,(Through P.S. Bhadrachalam Town) ...Respondent/Complainant

DATE OF JUDGMENT PRONOUNCED : 08.09.2023

Submitted for approval.

THE HON'BLE SRI JUSTICE K.SURENDER

1 Whether Reporters of Local newspapers may be allowed to see the Yes/No Judgments?

2 Whether the copies of judgment may be marked to Law Reporters/Journals Yes/No

3 Whether Their Ladyship/Lordship Wish to see their fair copy of the Yes/No Judgment?

__________________ K.SURENDER, J

* THE HON'BLE SRI JUSTICE K. SURENDER

+ CRL.A. No. 32 of 2021

% Dated 08.09.2023

# Sri Dharavath Sathish ... Petitioner/Accused No.2

And

$ The State of T.S, Rep. by its Public Prosecutor , High Court of T.S, Hyderabad,(Through P.S. Bhadrachalam Town) ...Respondent/Complainant

+ CRL.A. No. 76 of 2021

# Sri Amgoth Nagaraju ...Petitioner/Accused No.1

And $ The State of T.S, Rep. by its Public Prosecutor, High Court of T.S, Hyderabad,(Through P.S. Bhadrachalam Town) ...Respondent/Complainant

! Counsel for the Petitioner: Sri K.Prabhakar Rao & P.Venkanna

^ Counsel for the Respondents: Sri Public Prosecutor

>HEAD NOTE:

? Cases referred

1.2011(1) ALD (Crl.) 285 (SC) 2.2009 (2) ALD(Crl.) 41 (SC)

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL Nos.32 & 76 of 2021 COMMON JUDGMENT:

Criminal Appeal No.32 of 2021 was filed by the Accused

No.2 and Criminal Appeal No.76 of 2021 was filed by the Accused

No.1 questioning the conviction recorded by the Special Sessions

Judge for trial of cases under NDPS Act-cum-I Additional District

and Sessions Judge, Khammam, dated 27.01.2021, in SC.NDPS

no.3 of 2018, convicting and sentencing the accused Nos.1 and 2

to undergo Rigorous Imprisonment for a period of ten years each

and also to pay a fine of Rs.1 lakh each, for the offence punishable

under Section 8(c) r/w. Section 20(b) of the NDPS Act, 1985.

2. Since the appellants in both the appeals are challenging

their conviction in SC NDPS.No.3 of 2018, both the appeals are

heard together and disposed off by this common Judgment.

3. Briefly, the case of the prosecution is that P.W.7 along with

his staff was conducting check at CRPF Camp Office at

Kunavaram road, Bhadrachalam. One car bearing No.TS 29T

0556 was stopped and in the said car, the appellants were

present. The car was checked and 19 plastic packets of ganja were

found in the dickey. Thereafter, P.W.7 informed the Tahsildar

about the vehicle being stopped and also requested to depute two

witnesses, who are examined as P.Ws.2 and 3, Village Revenue

Officers. 19 Ganja packets were seized along with car bearing

No.TS 29T 0556 under cover of panchanama. Thereafter, the

accused were arrested and remanded to judicial custody. Samples

were drawn in the presence of Magistrate on 01.09.2018 and

forwarded to the FSL for analysis. Ex.P6 is the order dated

01.09.2018 passed by the Magistrate certifying the correctness of

the inventory Ex.P5 photographs, Ex.P4 samples of ganja which

were taken in the presence of Magistrate. Ex.P8 is the FSL report

dated 17.10.2019 in which samples were found to be ganja, which

is narcotic drug.

4. Learned Sessions Judge having examined P.Ws.1 to 7

marked Exs.P1 to P9 and MOs.1 to 9 which are 19 pockets of

ganja that were seized. Learned Sessions Judge found that these

appellants were in possession of ganja and accordingly convicted

the appellants.

5. Learned counsel appearing for the appellants would submit

that the alleged incident occurred on 01.09.2018 whereas the FIR

and the Panchanama Ex.P1 and P2 were sent to the concerned

Magistrate with a delay of 10 days. In Ex.P9-requisition which was

made to the Mandal Tahasildar reflects that one car bearing No.AP

20 AK 8814 was stopped. However, as seen from the panchanama,

the car which was stopped was TS 29 T 0556.

6. Learned Counsel further submitted that when there was

information that the Police sent Ex.P9, the same should have been

reduced into writing and informed to the Senior Officers in

accordance with Section 42 of the NDPS Act. He relied on the

Judgment of Honourable Supreme Court in State of Karnataka

v. Dondusa Namasa Baddi 1, wherein the Honourable Supreme

Court held that the provision under Section 42(2) of the NDPS Act,

1985 should be complied with and the documents should reflect

the said compliance. Merely stating that the information was

provided to superior officers will not suffice.

7. The Judgment reported in U.O.I v. Bal Mukund and

others 2, the Honourable Supreme Court found that when some

secret information was received, the said information was neither

reflected in writing nor forwarded to the superior officers as

required under Section 42 of the NDPS Act. In the absence of

meeting mandatory requirement under Section 42, the

Honourable Supreme Court allowed the appeal and set aside the

conviction.

2011 (1) ALD (Crl.) 285 (SC)

2009 (2) ALD (Crl.) 41 (SC)

8. Learned Public Prosecutor would submit that samples were

drawn in the presence of Magistrate and they are found to be

ganja. No error is committed by the learned Sessions Judge in

convicting the appellants.

9. As seen from Ex.P9 it is specifically mentioned that there

was reliable information that the car bearing No.AP 28 AK 8814

was stopped and ganja was found. However, from Ex.P1 and

evidence of witnesses, the car which was stopped was TS 29 T

0556. Though in the evidence of PW7-Investigating Officer he

stated that said car was seized, no document was filed before the

trial Court to show that any car was deposited before the Court. In

the evidence of PW7, he specifically stated that car bearing No.TS

29 T 0556 was searched and seized along with 19 packets of

ganja. The discrepancy of different car numbers and the reason as

to why the car was not deposited before the Court, is not

explained by the prosecution. It is significant in view of the

following discussion.

10. In the evidence of PW7, he stated that the appellants were

produced for judicial custody on 12.09.2018. However, in Ex.P6, it

is stated that the appellants were remanded on 01.09.2018. The

copy of Ex.P6 which is the medical inventory and making request

to collect samples were made on 10.09.2018. On the same day,

FIR and panchanama Exs.P1 and P2 were filed before the

concerned Magistrate. In Ex.P2 FIR it was specifically endorsed by

the learned Magistrate that the FIR was received with Remand

Report and signed on 10.09.2018. The documents reflect that the

appellants were remanded on 01.09.2018. In Ex.P2 it is

mentioned that the FIR was received on 10.09.2018 along with

Remand Report. In the evidence of PW7, he asserted that the

appellants were remanded on 10.09.2018. There is no explanation

for such discrepancy which is glaring.

11. Ex.P9 letter to Tahsildar mentions about specific information

but the car number differs from which 19 packets of ganja was

seized. In the letter Ex.P9 it was specifically mentioned that on

reliable information Car No. AP 28 AK 8814 was stopped and

Ganja was found. In the event of having information, the

prosecution ought to have complied with Section 42 of the NDPS

Act by informing the Superior Officers about the information

regarding accused, contraband or the vehicle. No such documents

are produced by the prosecution. Further the car shown as seized

is car No. TS 29 T 0556.

12. In view of the discrepancies in the prosecution case, when

the prosecution is not able to show as to on which date the

accused was remanded whether it was 01.09.2018, 10.09.2018,

12.09.2018 which dates appeared in the evidence and documents

and also for the delay in sending the complaint to the Police on

10.09.2018, there arises any amount of doubt in the prosecution

case.

13. For the aforesaid reasons, benefit of doubt is extended to the

appellants.

14. Accordingly, both the Criminal Appeals are allowed and the

appellants /A1 & A2 in the both the appeals are acquitted. The

conviction recorded by the Special Sessions Judge for trial of

cases under NDPS Act-cum-I Additional District and Sessions

Judge, Khammam, in SC.NDPS No.3 of 2018, dated 27.01.2021 is

hereby set aside. Since the appellants are on bail, their bail bonds

shall stand cancelled.

Consequently, miscellaneous petitions, if, pending, shall

stands closed.

__________________ K.SURENDER, J Date: 08.09.2023 Note: LR copy to be marked kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL Nos.32 & 76 of 2021

Date: 08.09.2023.

kvs