Andhra HC (Pre-Telangana)
Polamarasetti Naga Sreenivasarao vs State Of A.P. on 28 February, 2007
Equivalent citations: 2007CRILJ2515
JUDGMENT A. Gopal Reddy, J.
1. The appellant/accused No. 3 preferred this Criminal Appeal questioning the judgment passed by the special Judge to try the offences under N.D.P.S. Act cum Metropolitan Sessions Judge, Visakhapatnam, in S.C. No. 39 of 2001, dated 12-11-2001, whereby he was convicted for the offence punishable under Section 8(c) read with Section 20(b)(i) of the N.D.P.S. Act (for short 'the Act') and sentenced to undergo rigorous imprisonment for three months apart from fine of Rs. 1000/- in default to undergo simple imprisonment for a period of one month.
2. The accusation, which led to the conviction of A. 3 is that on 28-7-2001 at about 18.30 hours at Vinayaka Swamy Temple near Krishnanagar, Pendurrthi, he along with A. 1 and A.2 were found in possession of ganja weighing about 50 kgs. in two suit cases and two bags with flowers, stems and fruits while transporting in contravention of Section 8(c) and there by committed an offence punishable under Section 20(b)(i) of the Act. The accused denied the charge and claimed to be tried.
3. In order to prove its case, the prosecution examined PWs. 1 to 3 and got marked Exs. P. 1 to P. 6 apart from Mos. 1 to 13. Neither oral nor documentary evidence was adduced on behalf of the defence.
4. On consideration of the above evidence, the learned Sessions Judge held that the prosecution is able to bring home the guilt of the accused beyond reasonable doubt and the mandatory provisions of Sections 42 and 50 of the Act have been followed in seizing the contraband, found the accused guilty of the charges framed against him and accordingly convicted and sentenced him as referred to above while A. 1 and A. 2 were convicted and sentenced to undergo rigorous imprisonment for three months apart from fine of Rs. 1000/- each, in default, to undergo simple imprisonment for one month each.
5. To attribute knowledge of appellant / A.3, the prosecution mainly relied upon the evidence of PWs. 1 to" 3.
6. PW. 1 deposed that he was called by PW.3 on 28-7-2001 to Pendurthi Police Station. By the time he went there, both Sub-Inspector and the Mandal Revenue Officer (PW.2) and other mediators were present there. They asked him to act as mediator. He agreed and proceeded along with them to Vigneswara temple of Krishnanagar at about 5/5.30 pm where they stopped one auto as they have received some information about carrying of ganja by the accused persons. A. 1 and A.2 were the persons sitting in the auto and A.3 was the driver of the auto. There were two brief cases and two gunny bags in the auto. The M.R.O. opened them and found ganja in all the four items. Then the said four items were taken to a nearby shop and get them weighed. Then they have taken 100 grams of ganja from each item and divided the same into two equal parts of 5 grams each. Therefore, a statement of the accused was recorded.
7. PW.2, who is the Mandal Revenue Officer at the relevant point of time and whose evidence was relied upon for convicting the accused, deposed that on 28-7-201 he was called by PW.3. They along with mediaters proceeded from the police station to Krishnanagar Vinayaka Temple. They waited for about 1 1/2 hour and thereafter, found one auto coming from Vepagunta side to Gopalapatnam side. On seeing the police, the auto was about to take turn. Then the police stopped the auto on suspicion of carrying of ganja. Then the accused asked him to search for the same. On searching A. 1 and A. 2 were in possession of one bag and one suitcase each. Then the bags and suitcases were opened and searched and they contain ganja. Later they drew samples from it.
8. PW. 3 deposed that on receiving the information about the transportation of ganja by A. 1 and A.2 through an auto, he entered the said information in the G. D., informed the same to his superior officer, submitted a requisition letter to M. E. M-cum-Gazetted officer, Pendurthi, secured the mediators PWs. 1 and 2, proceeded to Ganesh temple of Krishnanagar and waited there. At about 6.30 p.m., they noticed an auto was coming from Vepagunta towards Gopalapatnam. Then they stopped the said auto, searched the same and found the accused in possession of ganja. Thereafter after following the due procedure, they seized the contraband under Mos. 1 to 4.
9. The learned Sessions Judge, after considering the entire evidence, observed that PW.2 categorically stated that on seeing the police A.3 made an attempt to turn the auto, which itself shows that he has knowledge about the contents of the bags transported by A. 1 and A.2. Therefore, mere non-recovery of the amount from A. 3 cannot be a ground to discard the evidence against him. The conduct of the accused in turning the auto on seeing the police is itself sufficient to presume that he has got knowledge about the illegal transportation of ganja by A. 1 and A.2. Accordingly the learned Sessions Judge, found the accused guilty of the offence punishable under Section 8(c) read with 20(b(i) of the Act and convicted and sentenced them as referred to above. Aggrieved by the same, the appellant /A.3 filed the present appeal.
10. Learned Counsel for the appellant, by relying on a judgment of the Supreme Court in Abdul Rashid Ibrahim Mansuri v. State of Gujarat 2000 (1) ALD (Crl.) 404 : 2000 Cri LJ 1384 rightly contended that the burden of proof cast on the accused under Section 35 of the Act can be discharged through different modes, by relying on the materials available in the prosecution evidence or by electing answers from the prosecution witnesses through cross-examination, to dispel any such doubt. In the absence of any evidence by the prosecution to show that there was connivance between the appellant-A.3, and A. 1 and A.2, and in the absence of any close association or relationship between them, knowledge cannot be attributed to the appellant with the contraband concealed in the gunny bags. Therefore, attributing knowledge only on the ground that the appellant tried to turn the auto on seeing the police cannot be a ground to convict the appellant and hence, the appellant is entitled for acquittal.
11. On the other hand, learned Public Prosecutor fairly contended that except the above evidence there is no other evidence to attribute knowledge to the appellant-A.3.
12. The Supreme Court in the above referred case at paragraphs 22 and 23 held as under:
The burden of proof cast on the accused under Section 35 can be discharged through different modes. One is that, he can rely on the materials available in the prosecution evidence. Next is, in addition to that he can elicit answers from prosecution witnesses through cross-examination to dispel any such doubt. He may also adduce other evidence when he is called upon to enter on his defence. In other words, if circumstance appearing in prosecution case or in the prosecution evidence are such as to give reasonable assurance to the Court that appellant could not have had the knowledge or the required intention, the burden cast on him under Section 35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence.
In this case non-recording of the vital information collected by the police at the first instance can be counted as a circumstance in favour of the appellant. Next is that even the information which PW.2 recollected from memory is capable of helping the accused because it indicates that the real culprits would have utilized the services of an auto-rickshaw driver to transport the gunny bags and it is not necessary that the auto rickshaw driver should have been told in advance that the gunny bags contained such offensive substances. The possibility is just the other way around that the said culprits would not have disclosed that information to the auto rickshaw driver unless it is shown that he had entered into a criminal conspiracy with the other main culprits to transport the contraband. Prosecution did not adduce any evidence to show any such connivance between the appellants and the real culprits. There is nothing even to suggest that those culprits and the appellant were close to each other, or even known to each other earlier.
13. From the evidence let in by the prosecution, the accused could discharge the burden cast upon him under Section 35 of the Act that A 1 and A 2 did not disclose to him about concealing of contraband in the gunny bags. Unless it is shown by the evidence let in by the prosecution that the appellant connived with A 1 and A 2 to transport the contraband, and has entered into a criminal conspiracy with A. 1 and A. 2 to transport the contraband, it is unsafe to convict the accused merely because he tried to over turn the auto on seeing the police. In view of the same, the conviction and sentence recorded against the appellant A3 by the learned Sessions Judge is not sustainable.
14. In the result, the Appeal is allowed and the conviction and sentence recorded against the accused by the Metropolitan Sessions Judge, Visakhapatnam, are set aside. The appellant A3 shall be set at liberty forthwith, if he is not required in any other case.