AARIKATLA MUSALAIAH AND ANOTHER v. THE STATE OF A.P.

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G.V.Rami Reddy P.C.1207 were patrolling in government jeep (rented) AP 04T 6465, and that at 4.15 P.m. he found A.1 and A.2 on the left side of the road margin at Sakthi Gas Company, on Darsi-Addanki road in the outskirts of Darsi village, and on suspicion P.W.4 stopped A.1 and A.2 and questioned their particulars, and Excise Inspector issued Ex.P.2 and P.3 notices to A.1 and A.2 informing them whether they require the presence of Magistrate or Gazetted Officer for personal search. A.1 and A.2 gave replies under Ex.P.4 and P.5 stating that there is no necessity for presence of Gazetted Officer or Magistrate, and they can be searched in the presence of mediators. Thereafter, P.W.4 requested P.W.1 S.Venkata Narasaiah and P.W.2 J.Mohan who were going on the way and in the presence of P.W.1 and 2, P.W.4 examined the plastic bags M.O.s.2 and 4 which were in possession of A.1 and A.2 and found stems, leaves, sprouts and seeds of Ganja, and the bags were weighed and found they are of 4 kgs and 7 kgs of ganja. P.W.4 collected 100 grams from each bag as samples under M.Os.1 and 3, and sealed samples M.Os.1 & 3 and bags M.Os.2 & 4 with paper slips containing the signatures of P.W.s.1 and 2 and accused and wax seal of P.W.4. He seized the property and arrested the accused under cover of Ex.P.1 panchanama. Copies of Ex.P.1 were furnished to A.1 and A.2 by obtaining signature and thumb

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impressions of A.1 and A.2 in Ex.P.1. Thereafter P.W.4 took the accused, Ex.P.1 to P.5 and M.Os.1 to 4 to his station and there he registered Ex.P.1 panchanama as case in P.R.No.29/08-09 of P & E Station, Darsi u/sec.8(c) r/w 20(b) of the Act and submitted original FIR Ex.P.6 to the court and on the next day morning he sent accused and records to the court for judicial custody and on 24.05.2008, he sent M.Os 1 and 3 samples through court to the chemical examiner, P & E laboratory, Guntur. The chemical examiner sent Ex.P.7 report stating that the sample was containing ganja. Thereafter P.W.4 filed the charge sheet.

4) The learned Special Judge on perusal of the charge sheet took cognizance of the case under Section 20(b)(ii)(B) r/w 8(c) of N.D.P.S Act. On appearance of the accused, copies of case documents were furnished to them as required under Section 207 of the Cr.P.C., and on hearing both sides, a charge under Section 20(b)(ii)(B) r/w 8(c) of N.D.P.S Act was framed against A.1 and A.2 and explained the same to them, for which they pleaded not guilty and claimed to be tried.

5) During the course of trial, on behalf of the prosecution, P.W.1 to P.W.4 were examined and Ex.P.1 to Ex.P.7 and M.O.1 to M.O.4 were marked. After closure of the evidence of prosecution, the accused were examined under

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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 stated that they have no defence witnesses.

6) The learned Special Judge on hearing both sides and on considering the evidence on record, found A.1 and A.2 guilty of the charge, under Section 20(b)(ii)(B) r/w Section 8(c) of N.D.P.S Act, and convicted them under Section 235(2) Cr.P.C. After, questioning A.1 and A.2 about the quantum of sentence, the learned Special Judge sentenced them to undergo rigorous imprisonment for five years each and to pay a fine of Rs.5,000/- each in default to suffer simple imprisonment for six months and that period of imprisonment undergone by them shall be set off under Section 428 Cr.P.C.

7) Felt aggrieved of the same, the unsuccessful A.1 and A.2 filed the present Criminal Appeal.

8) Now, in deciding this Criminal Appeal, the points for determination are as follows:

(1) Whether the prosecution proved that on 07.05.2008 at about 4.30 P.M., near Sakthi Gas Company, Darsi, A.1 and A.2 were found in possession of 4 Kgs and 7 Kgs of Ganja respectively, in the manner as alleged by the prosecution?

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(2) Whether the prosecution proved the charge under Section 20(b)(ii)(B) r/w Section 8(c) of N.D.P.S Act, against the accused beyond unreasonable doubt?

(3) Whether the judgment of the learned Special Judge, Sessions Case No.31 of 2008, dated 22.06.2009, is sustainable under law and facts?

Point Nos.1 to 3:-

9) Sri T.S.Rayulu, learned counsel, representing Smt.Kavitha Gottipati, learned counsel for the appellants, would contend that P.W.1 and P.W.2 were working in brandy shop, Darsi and they were under the influence of excise officials, as such they supported the case of the prosecution. P.W.3 and P.W.4 were the excise officials. The excise officials did not secure the independent witnesses to witness the recovery of alleged Ganja. Even, according to P.W.1 and P.W.2, by the time they went to the scene the excise police could found the Ganja. So, P.W.1 and P.W.2 were not the witnesses to the actual recovery. Though, the offence in question was in day light in a busy locality the prohibition and excise party did not try to secure independent witnesses of that locality and that accused were falsely implicated and they have nothing to do with the Ganja. Further, the excise police did not make any effort to secure the presence of persons from the gas godown, though, they have a chance to do so. The evidence of P.W.3 and P.W.4

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is interested. There was violation of Section 57 of the N.D.P.S. Act, without sending any information to the superiors of excise police. He further submitted that the sentenced imposed against the accused is harsh. With the above said contentions, he would argue that the Appeal is liable to be allowed.

10) Sri N.Sravan Kumar, learned counsel, assisting the learned Public Prosecutor, would contend that P.W.1 and P.W.2 were the independent witnesses. They have nothing to do with any brandy shop. They denied that they were working under any brandy shop. They supported the case of the prosecution. Nothing was elicited to disbelieve their evidence. When the excise police party spotted A.1 and A.2 with plastic gunny bags and when they revealed that bags contain Ganja, then they secured the presence of P.W.1 and P.W.2 as panchayatdars. So, searching of bags was done in the presence of P.W.1 and P.W.2. Their evidence corroborates the evidence of P.W.3 and P.W.4. The investigating officer complied Section 57 of the N.D.P.S. Act. The learned special Judge rightly found the accused guilty, as such the Appeal is liable to be dismissed.

11) P.W.1 and P.W.2 were the panchayatdars. P.W.3 was the prohibition and excise Head Constable who participated in the raid. P.W.4 was excise inspector who conducted the raid.

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12) The evidence of P.W.1 is that he is resident of Darsi. One year ago, between 2.30 and 4 P.M., the police asked him along with L.W.2, J.Mohan to act as panchayatdars, when they were going on the way to Pulipadu. Then the excise police stopped their jeep. By the time they went there they found A.1 and A.2 with two plastic gunny bags. The inspector told them they caught hold of the accused with Ganja in their bags and requested them to act as mediators and they agreed. The gunny bags were weighed and in one bag 7 Kgs was there and in another bag 4kgs was there. The inspector collected the samples of Ganja in separate packets and sealed with paper slips. They, mediators and one accused signed and another accused put thumb impression. A panchanama was drafted to that effect. The inspector and constables signed and another accused put thumb impression. M.O.1 is the sample collected from the bag of 4 kgs of Ganja and M.O.2 is the remaining bag of 4 Kgs Ganja. M.O.3 is the sample collected from the bag of 7 Kgs of Ganja. M.O.4 is the remaining bag of 7 Kgs Ganja.

13) The evidence of P.W.2 is also same as that of the evidence of P.W.1. Coming to the evidence of P.W.3, the head constable and the evidence of P.W.4, the inspector of Prohibition and Excise, they deposed that on Darsi to Addanki road at a distance of one and half kilometer from Darsi at Shakthi Gas

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Godown at 4.P.M., they found A.1 and A.2 and on seeing them, they tried to run away and they caught hold of them and they are in possession of two plastic gunny bags. They revealed that it contained Ganja. Then, they secured P.W.1 and P.W.2 as mediators. In their presence, gunny bags were verified and they found Ganja in the gunny bags. A Mahzarnama was drafted after lifting the samples. Ex.P.1 is the panchanama. The Ex.P.1 was written by M.V.Koteswara Rao. He also signed Ex.P.1.

14) It is to be noted that the evidence of P.W.4 is somewhat elaborate, as if he issued notices under Ex.P.2 and Ex.P.3, asking them whether they need the presence of any gazetted officer and they consented to be searched before him and after that in the presence of P.W.1 and P.W.2, he searched the gunny bags.

15) Firstly, this Court would like to make it clear that the act of P.W.4 in issuing Ex.P.2 and Ex.P.3 notices, as if they need the presence of any gazetted officer was with an intention to comply section 50 of the N.D.P.S. Act. When there was no personal search of the A.1. and A.2 of their persons, there was no need to comply Section 50 of the N.D.P.S. Act.

16) Coming to the cross examination part of P.W.1, he denied that he is working in a brandy shop. He went to excise police station and signed Ex.P.1 and paper slips affixed on M.O.1

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to M.O.4. Except giving suggestions to P.W.1, as if accused are innocent and that they have nothing to do with the offence. There remained nothing in cross examination in which brandy shop, he was working. Similarly, in the evidence of P.W.2 also nothing was elicited to show that he was working in brandy shop. The defence of accused that P.W.1 and P.W.2 used to work in brandy shop, as such they went to excise police station and simply signed Ex.P.1 and paper slips is not at all probabilized in any way. Looking into the evidence of P.W.1 and P.W.2, their evidence is consistent. There are no circumstances to disbelieve their evidence. Their evidence corroborates the evidence of P.W.3 and P.W.4.

17) It is to be noted that according to P.W.3 and P.W.4, after catching hold of A.1 and A.2 and after A.1 and A.2 revealed that the bags contain Ganja, they secured the presence of P.W.1 and P.W.2. It is to be noted that P.W.3 and P.W.4 for every movement were not supposed to carry the mediators all through along with them. I do not find any discrepancy between the evidence of P.W.1 and P.W.2 at one hand and the evidence of P.W.3 and P.W.4 at another hand. Hence it cannot be held that P.W.1 and P.W.2 did not witness the occurrence. They were the witnesses to the search of gunny bags in possession of A.1 and A.2. According to their evidence bags contained Ganja.

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18) Having regard to the above, I am of the considered view, that evidence adduced by the prosecution is consistent. P.W.1 and P.W.2 have no reason to depose false against the accused. P.W.3 and P.W.4 have no reason to implicate the accused falsely. The evidence on record would disclose that excise police duly lifted M.O.1 and M.O.3 from M.O.2 and M.O.4 respectively. As seen from the Ex.P.7, the samples were of Ganja. Absolutely, accused have no probable defence, except the denial. Accused were not supposed to possess Ganja with them. It is nothing but violating the provisions of the N.D.P.S. Act.

19) Coming to the contention of the accused that Section 57 of the N.D.P.S. Act is violated, this Court would like to make it clear that according to the evidence of P.W.4, after sending the accused to the Court for Judicial Custody, he reported the matter to the excise Superintendent by phone. Though he did not send any detailed report, but the fact remained is that the Ex.P.1 panchanama coupled with the F.I.R. could reach the concerned Court within 48 hours from the time of the arrest of the accused. Apart from this, Section 57 of the N.D.P.S Act is directory but not mandatory as held by the Hon'ble Supreme Court in

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Sajan Abraham vs State Of Kerala¹

. In the light of the above, I am of the considered view that learned Special Judge on thorough appreciation of the evidence on record rightly found A.1 and A.2 guilty of the charge and convicted them.

20) Now, coming to the sentence imposed against the appellants, as evident from the judgment of the trial Court, there was no dispute that in the charge sheet, the police shown the age of 1^stappellant as 46 years and the 2^ndappellant as 63 years. A.1 before the learned Special Judge stated that he has three children, Wife and older mother and his elder brother and sister-in-law died and they are dependent on him. A.2. stated that he is aged about 70 years. He and his wife are having bad eye sight. However, the learned Special Judge on the ground that Ganja is spoiling the youth, imposed sentence of rigorous imprisonment of five (5) years each.

21) It is to be noted that the quantity of Ganja that was found in possession of A.1 and A.2 was of 4Kgs and 7Kgs respectively. It is not commercial quantity. Having regard to the overall facts and circumstances, in my considered view, the sentence of five (5) years rigorous imprisonment imposed against them is harsh, as such it needs to be reduced accordingly.

AIR 2001 SC 3190

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22) In the result, the Appeal is allowed in part, reducing the rigorous imprisonment of five (5) years imposed against the appellant Nos.1 and 2, to that of two and half (2 ½) years each and the rest of the judgment in Sessions Case No.31 of 2008, dated 22.06.2009, on the file of Special Judge for NDPS Cases- cum-I Additional District & Sessions Judge, Ongole, against the appellants shall stands confirmed in all other aspects.

23) The Registry is directed to take steps immediately under Section 388 Cr.P.C to certify the judgment of this Court including the trial Court record, if any, to the trial Court on or before 27.12.2023 and on such certification, the trial Court shall take necessary steps to carry out the remaining sentence imposed against the appellants/accused Nos.1 and 2 in S.C.No.31 of 2008, dated 22.06.2009, and to report compliance to this Court. A copy of this judgment be placed before the Registrar (Judicial), forthwith, for giving necessary instructions to the concerned Officers in the Registry.

Consequently, miscellaneous applications pending, if any, shall stand closed.

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

CRL. APPEAL NO.723 OF 2009

Date: 20.12.2023

MH