Andhra HC (Pre-Telangana)
Shaik Mahaboob Basha vs State Of Andhra Pradesh on 14 August, 1997
Equivalent citations: 1997(5)ALD711, 1997(2)ALD(CRI)598, 1997(3)APLJ108, 1998CRILJ171
JUDGMENT
1. This appeal is filed against the judgment in S.C. No. 115/95 convicting the accused under section 8(c) r/w 20(b)(i) of the N.D.P.S. Act and sentencing him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 500/-, in default to suffer simple imprisonment for a period of one month.
2. The case of the prosecution is that the Asst. Commissioner of Excise (Enforcement), Nellore along with officers and staff visited the house of the accused located in Gundamkatta in 15th ward of Kandukur and found the accused person at the house and that after serving search proceedings to the accused, searched the house of the accused in the presence of mediators and during search a paper packet was found in the eastern side roof of the house of the accused and that on opening the packet it was found to be Ganja weighing 250 grams - and the accused did not account for possession of Ganja and that 30 grams of Ganja was sent for Chemical Examination and the accused was arrested and the property was seized under the mediators report on 13-8-1991. The Chemical Examiner sent his report stating that it is Ganja. On the basis of the above investigation charge-sheet was filed. The accused pleaded not guilty. The prosecution in support of its case examined six witnesses P.Ws. 1 to 6 and marked Exs. P-1 to P-6 and M.Os. 1 and 2. On the basis of the evidence, the Sessions Judge convicted the accused under section 8(c) r/w. Section 20(b)(i) of NDPS Act. Aggrieved by the same the present appeal is filed.
3. P.W. 1 is Asst. Excise Superintendent, Enforcement, Nellore. He accompanied the Asst. Commissioner, Excise (Enforcement) and raid party. He deposed that they picked up the mediators namely P. Munuswamy, V.A.O. of Kandukur and Sk. Tirupalu of Kandukur and reached the house of the accused located at Gundamkatta area of Kandukur town. He was present at the house. They searched the house of the accused and found one paper packet in the thatched roof of the house on the eatern side inside the house. On examination, it was found that the packet was containing Ganja weighing about 250 grams. In the cross-examination, he stated that himself, Inspector, Sub-Inspector, one constable and two mediators went into the house of the accused. By the time they went to the scene of offence, the accused was standing at the threshold of the house. On seeing them the accused was perturbed and did not try to run away.
4. P.W. 2 is Prohibition and Excise Inspector. He corroborates the version of P.W. 1. In the cross-examination, he says that by the time they went to the scene of offence the accused available in front of the house.
5. P.W. 3 deposed in his cross-examination that the accused was available at the threshold of his house and he did not attempt to run away on seeing them and there were no other person in the house of the accused. He corroborates the version of P.W. 1.
6. The village Assistant, Kandukur was examined as P.W. 4. He is an independent witness. He corroborates the version of P.W. 1.
7. From the above evidence, the recovery of Ganja from the house of the accused and the presence of the accused near the house is established. However, there is no evidence that the accused is the exclusive owner and occupier of the house. The prosecution failed to establish that the accused is in exclusive possession of the house and that he is in possession of Ganja. In the absence of which the guilt of the accused under section 8(c) r/w 20(b)(i) of the NDPS Act cannot be established. In this case the reference to the evidence of the prosecution witnesses does not establish the conscious possession of the Ganja by the accused.
8. The argument of the learned counsel for the appellant is that there is non-compliance of Section 57 of the NDPS Act. Section 57 reads as follows :
"REPORT OF ARREST AND SEIZURE :
"Whenever any person makes any arrest or seizure under this Act, he shall, within forty eight hours next after such arrest or seizure make a full report of the particulars of such arrest or seizure to his immediate official superior."
9. In State of Punjab v. Balbir Singh, , the Supreme Court held that :
"Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits."
10. The Supreme Court held in Mohinder Kumar v. State, Panaji, Goa, :
"In Balbir Singhs' case, it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officer after making arrest or seizure are mandatory in character. In that view of the matter, the learned counsel for the State was not able to show for want of material on record that the mandatory requirements pointed out above had been adhered to. The accused is, therefore, entitled to be acquitted."
A learned Judge of this Court in K. Kasanna v. State of A.P., 1996 (2) ALT 241, is of the view that compliance with Section 57 of the N.D.P.S. Act is mandatory and non-compliance with the provisions of the Act are fatal to the prosecution case and the accused is entitled for acquittal. In any view of the matter, the accused is entitled to benefit of doubt. Accordingly the Crl. Appeal is allowed setting aside the conviction and sentence awarded against him. He is set at liberty forthwith if not required in any other cause.
11. Appeal allowed.