Andhra Pradesh High Court - Amravati
Yanaki Gopala Krishna, Bheemavaram, ... vs The State, Rep. By P.P., Hyderabad. on 12 October, 2023
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CRIMINAL APPEAL No.692 OF 2010
Between:
1) Yanaki Gopala Krishna, S/o Pullaiah,
Aged about 51 years, Setti Balija,
Resident of Marellavari Street, 22nd Ward,
Near Simhadri Appanna Temple,
Bheemavaram, West Godavari District.
2) Shaik Khaja Mohiddin Basha, S/o Rahimuth
Saheb, aged 49 years, Muslim, resident of
Lingamgunta Village, Anantasagaram Mandal,
Nellore District. ... Appellants/Accused.
Versus
The State: Prohibition and Excise Inspector,
Mangalagiri, rep. by the Public Prosecutor,
High Court of Andhra Pradesh. ... Respondent/Complainant.
DATE OF JUDGMENT PRONOUNCED : 12.10.2023
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
1. Whether Reporters of Local Newspapers
may be allowed to see the judgment? Yes/No
2. Whether the copy of judgment may be
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wish to see the
Fair copy of the judgment? Yes/No
______________________
A.V.RAVINDRA BABU, J
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* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ CRIMINAL APPEAL No.692 OF 2010
% 12.10.2023
# Between:
1) Yanaki Gopala Krishna, S/o Pullaiah,
Aged about 51 years, Setti Balija,
Resident of Marellavari Street, 22nd Ward,
Near Simhadri Appanna Temple,
Bheemavaram, West Godavari District.
2) Shaik Khaja Mohiddin Basha, S/o Rahimuth
Saheb, aged 49 years, Muslim, resident of
Lingamgunta Village, Anantasagaram Mandal,
Nellore District. ... Appellants/Accused.
Versus
The State: Prohibition and Excise Inspector,
Mangalagiri, rep. by the Public Prosecutor,
High Court of Andhra Pradesh. ... Respondent/Complainant.
! Counsel for the Appellants:
Sri N. Harinath, learned counsel, representing
Sri Ch. Ravindra Babu for 1st appellant.
Sri Bhogadi Mallikharjuna Devarayulu, learned
State Brief for 2nd appellant.
^ Counsel for the Respondent : Public Prosecutor
< Gist:
> Head Note:
? Cases referred:
2022(1) ALT (Crl.) 208 (T.S.)
(2018) 2 Supreme Court Cases 305
2014(1) ALD (Crl.) 363 (SC)
(1994) 3 SCC 299
(2001)2 ALD (Crl.) 928 (AP)
AIR 2000 SC 402
(1999) 6 SCC 172
AIR 2003 SC 724
(2001) 3 SCC 28
(2004) 5 Supreme Court Cases 188
(2003) 7 SCC 465
(2000) 9 SCC 541
(2014) 5 Supreme Court Cases 345
2023 CRI.L.J.1696
2023(2) ALT (Crl.) 281 (A.P.)
This Court made the following:
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THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL APPEAL NO.692 OF 2010
JUDGMENT:-
The judgment, dated 19.03.2010 in Sessions Case No.2 of 2010, on the file of I Additional Sessions Judge, Guntur, is under challenge in the present appeal filed by the unsuccessful Accused No.1 and Accused No.2 ("A.1 and A.2" for short), who faced conviction and sentence under Section 8(c) r/w Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substance Act, 1985 ("NDPS Act" for short) for possessing 30 Kgs. of Ganja.
2) The parties to this Criminal Appeal will hereinafter be referred to as described before the trial Court for the sake of convenience.
3) The case of the prosecution, in brief, according to the averments set out in the charge sheet filed by the State, represented by Prohibition & Excise Inspector, Mangalagiri, in Crime No.89/2009-10 of Prohibition & Excise Station, Mangalagiri, under Section 8(c) r/w Section 20(b)(ii)(C) of the NDPS Act, is that;
(a) A.1 is resident of Marellavari Street, 22nd Ward, Near Simhadri Appanna Temple, Bheemavaram, West Godavari 4 District and A.2 is resident of Lingamgunta Village, Ananthasagaram Mandal, Nellore District.
(b) On 21.11.2009 L.W.3-G.E. Ananda Babu, Prohibition & Excise Head Constable, Mangalagiri; L.W.4-D. Rama Krishna, Prohibition & Excise Constable, Mangalagiri; L.W.5-Y. Ashok Kumar, Prohibition & Excise Sub Inspector, Mangalagiri and L.W.6-T. Srinivasa Rao, Prohibition & Excise Inspector, Mangalagiri, along with other staff conducted vehicle checking of the vehicles coming from Vijayawada side, near Khaja Tollgate, from 8-30 a.m. onwards. At about 10-45 a.m., L.W.6 stopped the APSRTC bus bearing No.A.P.28 Z 5018 from Machilipatnam to Tirupati to check the bus. Accordingly, he conveyed intention to check the bus to the driver of the said bus and served search proceedings under Section 165 of the Criminal Procedure Code ("Cr.P.C." for short) on L.W.1-A. Surya Nagendra Rao, bus driver. On search, he found A.1 in seat No.11 in the 4 th row behind the conductor and further found A.2 in the seat No.14, behind the driver, by keeping some bags in front of them. On enquiry, both of them admitted possession of Ganja in the said bags in a confusing manner. Then, L.W.6 requested L.W.1 and L.W.2-K. Ramkumar, the Drivers of the said RTC Bus to act as mediators, for which they agreed to do so. In the presence of them, he verified the white polythene sticks bag and black zip 5 bag with A.1 and white polythene sticks bag and wheat colour sticks bag with A.2. He found leaves, stems, flowers and seeds smelling as Ganja. Then he secured one electronic weighing machine with the help of L.W.3. In the presence of mediators i.e., L.W.1 and L.W.2, he got numbered the bags as Sl.Nos.1 and 2 in respect of the bags of A.1 and numbered the bags of A.2 as Sl.Nos.3 and 4 and got weighed the same. He found 8.500 Kgs, 8.500 Kgs., 7.00 Kgs. and 6-00 Kgs. in total 30 Kgs of Ganja in the above said bags. A.1 and A.2 revealed their names and identity particulars on enquiry by him. They confessed about the commission of offence. They handed over the bus journey tickets. Then he has taken 100 grams of Ganja each into four separate paper packing, as samples for analysis and kept the remaining Ganja in the respective bags, tied the same, sealed and affixed identity slips. He arrested A.1 and A.2 after explaining grounds of arrest under cover of a mediators report scribed by L.W.4. Later, he registered the mediators report as a case in Crime No.89 of 2009-10 under Section 8(c) r/w Section 20(b)(ii)(C) of the NDPS Act and submitted original FIR to the concerned Court. He forwarded A.1 and A.2 for remand. He sent samples along with remaining crime property to the Court for the purpose of analysis and safe custody. As per the directions of the Court, an inventory proceedings under 6 Section 52(A)(2) of NDPS Act was prepared on 24.11.2009. Samples were sent to the analysis. Analysis opined in Rc.No.1549/2009, dated 03.12.2009 that samples are of Ganja. Hence, both the accused liable for punishment under Section 8(c) r/w Section 20(b)(ii)(C) of the NDPS Act.
4) The learned I Additional Sessions Judge, Guntur, took cognizance of the case under the above provisions of law. After appearance of both the accused and after compliance of Section 207 of Cr.P.C., the learned I Additional Sessions Judge, Guntur, framed charge under Section 8(c) r/w 20(b(ii)(C) of N.D.P.S Act for allegedly possessing commercial quantity of Ganja against both the accused, explained to them in Telugu, for which they pleaded not guilty and claimed to be tried.
5) In order to establish the guilt against the accused, the prosecution, during the course of trial, examined P.W.1 to P.W.3 and got marked Ex.P.1 to Ex.P.14 and M.O.1-four sample packets. After closure of the evidence of prosecution, the accused were examined under 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 that they have nothing to say anything before the Court and they have no defence witnesses.
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6) The learned I Additional Sessions Judge, Guntur, on hearing both sides and on considering the oral as well as the documentary evidence, found the accused guilty of the charge under Section 8(c) r/w Section 20(b)(ii)(C) of the NDPS Act and convicted them. After questioning them about the quantum of sentence, the learned I Additional Sessions Judge, Guntur, sentenced both the accused to suffer rigorous imprisonment for 10 years each and to pay a fine of Rs.1,00,000/- each, in default to suffer simple imprisonment for two years each and that the period of detention undergone by the accused shall be set off under Section 428 of Cr.P.C. Felt aggrieved of the same, the unsuccessful accused filed the present Criminal Appeal challenging the judgment of conviction and sentence as above.
7) Now, in deciding this Criminal Appeal in the light of the contention advanced before the learned I Additional Sessions Judge, Guntur and before this Court, the points for determination are as follows:
(1) Whether the prosecution proved that whether the mandatory provisions of Sections 42, 43 and 50 of the NDPS Act are applicable to the case of the accused and if so, whether they are complied?
(2) Whether the prosecution proved the charge against the accused beyond reasonable doubt?8
(3) Whether the judgment of the I Additional Sessions Judge, Guntur, dated 19.05.2010 in S.C.No.2 of 2010, is sustainable under law and facts?
POINT NOS.1 TO 3:-
8) Before taking up the points for determination, it is necessary here to make a mention certain circumstances in which the present second appellant is in Central Prison, Rajahmundry by carrying out the sentence imposed against him.
This Criminal Appeal is of the year 2010. Previously, when the matter was coming for hearing of the appellants, after giving several opportunities on 23.11.2022 the learned counsel for the appellants represented that he has no instructions. Then the Court issued bailable warrants to both the appellants on condition that if they execute self-bonds for Rs.10,000/-, they will be released and they should appear before this Court on the date of next hearing and instruct their counsel to advance the arguments. The matter was listed on 16.12.2022 for compliance. While so, on 16.12.2022 Sri Y. Jagadeeswara Rao, learned counsel, representing the learned Public Prosecutor, represented that the Superintendent of Jail, Atmakur sent an information that the second appellant is lodged in Sub-Jail, Atmakur, SPSR Nellore District, pertaining to Crime No.100 of 2022 filed under Section 8(c) r/w 20(b)(ii)(B) of N.D.P.S. Act 9 and also Crime No.86 of 2022 of SEB, Rapur under Section 8(c) r/w 20(b)(ii)(B) of N.D.P.S. Act, as such bailable warrant could not be executed. As the police could not secure the presence of second appellant by executing the bailable warrant and as the conduct of the second appellant was against the spirit of the bail bond executed by him, this Court directed the trial Court to take necessary steps to entrust the conviction warrant of the second appellant to the concerned police so as to carry out the sentence imposed in S.C.No.2 of 2020 pending disposal of the Criminal Appeal. Accordingly, this Court cancelled the suspension of sentence that was granted in favour of the second appellant vide order, dated 26.05.2010. Thereafter, compliance report is received from the I Additional Sessions Judge, Guntur that the directions are complied and that the second appellant is lodged in Central Prison, Rajahmundry to carry out the conviction pending disposal of the Criminal Appeal. Insofar as the first appellant is concerned, on 05.01.2023 he was present and the learned counsel for the first appellant wanted to continue on record. This Court got appointed a counsel by name Sri B.M. Devarayalu under State Brief to defend the second appellant. These are the circumstances in which the second appellant is in Central Prison, Rajahmundry as of now.
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9) P.W.1 is the driver in APSRTC, Machilipatnam. He deposed in substance that on 21.11.2009 they started at 7-00 a.m., in Machilipatnam and reached Vijayawada at 10-00 a.m. The accused boarded the bus at Vijayawada. At Khaja tollgate, Mangalagiri, police stopped the bus. Police seized bags from the accused, opened them and found Ganja. Ex.P.1 is the positive photograph of four bags seized from the possession of the accused containing Ganja. He and Ramakumar are the driver of the bus. The accused were taken to police station. All the procedure was scribed on a paper. He signed on it. Ex.P.2 is the mahazarnama. The other driver also signed on the mediatornama, dated 21.11.2009. He signed on the identity slips. The signatures found on the sample packets are of him. He does not know about the contents of it. As P.W.1 deviated on certain aspects from Ex.P.2, the mahazarnama, as if accused were taken to police station and all the procedure were scribed on a paper at police station, the learned Additional Public Prosecutor got declared him as hostile and during cross examination by the learned Additional Public Prosecutor, he deposed that the contents of Ex.P.2 are correct. He denied that police packed the samples in his presence and that he is deposing false to help the accused.
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10) During cross examination by the learned defence counsel, he deposed that there are about 25 passengers at the time of incident. Ex.P.2-mediatornama and samples were prepared at the police station and he signed on it. He signed Ex.P.2 at the police station. It was prepared by Mangalagiri police.
11) Turning to the evidence of P.W.2, another driver of APSRTC, he deposed that on 21.11.2009 while they were travelling in their bus, police apprehended both the accused at about 10-45 a.m., at Mangalagiri, Khaja tollgate. On that day, they were going to Tirupati from Machilipatnam. They stopped the bus at tollgate for payment of toll fee. Police stopped the bus, checked the passengers and found four bags from the accused from the upper rack on their seat. Ex.P.1 shows the photos of the bags. The accused boarded the bus at Vijayawada. They issued tickets to the accused. The police checked the tickets issued by him. Ex.P.3 is the tickets two in number. The police drafted mahazarnama. It contains his signature also. He signed on Ex.P.2-mediatornama. He also signed in two or three other papers. The identity slips on the samples contains his signature. Portion of the leaves from the seized bags were taken as samples and they were packed with small packets. M.O.1 is four samples.
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12) During cross examination by the learned defence counsel, he categorically deposed that they signed on Ex.P.2 and M.O.1 at tollgate. They stayed for about 10 minutes at the police station. Police seized the bags from the luggage stand. He denied that police seized nothing from the possession of the accused and that the accused are in no way connected with the offence and that he signed on Ex.P.2 and identity slips at the police station and that at request of the police he is deposing false.
13) Turning to the evidence of P.W.3, the then Inspector of Police, Prohibition & Excise Station, Guntur, he deposed that he worked in Prohibition & Excise Station, Mangalagiri, Guntur District from 05.01.2008 to 04.01.2010. On 21.11.2009 he along with his staff were conducting vehicular check at Khaja tollgate from 8-30 a.m. onwards. They checked vehicles coming from Vijayawada side. At 10-45 a.m., one APSRTC Bus No.A.P.28 Z 5018 from Machilipatnam to Tirupati and crossed the Khaja tollgate. They stopped the bus, informed the bus driver, served him the search proceedings and checked the bus. Ex.P.4 is the search proceedings. They found A.1 in Seat No.11 and further found A.2 in Seat No.14 while keeping some bags in front of them. When asked the accused, they confessed that the bags are containing Ganja. Then he asked the driver and 13 following driver i.e., P.W.1 and P.W.2 to act as mediators. In their presence, he searched the bags found in possession of the accused. He found one white polythene sticks handbag, one black colour zip bag in front of A.1 and one white polythene sticks handbag and brown colour stick handbag in front of A.2. They opened the four bags and found Ganja with seeds, leaves, stems and fruits of Ganja. Then, he deputed his Head Constable, G.E. Ananda Babu-L.W.2 to secure weighing machine. After 15 minutes he came with weighing machine. He got numbered four bags as Sl.Nos.1, 2, 3 and 4 and weighed the bags as Bag No.1 8-5 kags, Bag No.2 8.5 kgs., Bag No.3 7 kgs and Bag No.4 6 kgs. They found 30 Kgs of Ganja in all. He ascertained the identity particulars of the accused. Then he examined them about the possession of Ganja, for which they replied that they purchased the Ganja at Paderu from an unknown person, brought the same to Vijayawada and boarded in the bus and going to Kavali for selling the same at higher price. For that both the accused handed over their journey tickets Ex.P.3. He had drawn 100 grams of Ganja from each bag as M.O.1-samples for chemical analysis and affixed identity slips after taking the signatures of mediators, accused and he himself on it and affixed them to samples. He informed the grounds of arrest to the accused, arrested them and seized the case property under 14 Ex.P.2-mediatornama. He returned to Mangalagiri Excise Station at 10-50 p.m., and registered the mediatornama as a case in Crime No.89/2009-10 and issued Ex.P.5-FIR under Section 8(c) r/w 20(b) of NDPS Act. He produced both the accused for judicial remand and submitted the case property along with samples to the concerned Court. As per the directions of the Court, he had prepared inventory proceedings in Form-66 under Ex.P.6. Ex.P.7 is the preliminary report. He also submitted Ex.P.7 report to his superior officers. He submitted a memo under Section 52(A) before Additional Junior Civil Judge‟s Court, Mangalagiri. Ex.P.8 is the said Memo. Ex.P.9 is the proceedings under Section 52(A). The Court allowed his requisition and certified the correctness of inventory. He got photographed the samples, contraband and he forwarded the same to the Court. The inventory acceptance letter from Addl. Junior Civil Judge, Mangalagiri to the I Additional Sessions Judge, Guntur is Ex.P.10. He also forwarded the samples for chemical analysis through the Court by way of letter of advice. Ex.P.11 is the letter of advice. Ex.P.12 is the analysis report received by him. Form No.66 endorsement, dated 21.11.2009 is Ex.P.13. Ex.P.14 is the photographs six in number at the time of inventory. After completion of investigation, he filed the charge sheet. 15
14) Turning to the cross examination part of P.W.3, he deposed that on the date of incident, they checked 10 to 20 vehicles. They served notice under Section 165 of Cr.P.C. to them. They registered FIR at 12-50 p.m. He took 15 minutes from tollgate to Court. Along with the accused, they also sent samples and property. The Court gave instructions to them to dispose of the property as per Section 52(A). Ex.P.2 is prepared at the tollgate at the left side road margin. As per Ex.P.2, they seized four bags at the seat of the accused. Constable Ramakrishna prepared Ex.P.2 on his instructions. He denied that they did not find Ganja from the accused and they did not stop the bus and that the accused are in no way connected with the offence and they planted M.O.1 for the purpose of case. He denied that he prepared everything in the police station at 4-00 p.m., and did not follow the mandatory provisions in this case and that he lifted the samples in the police station and obtained the signatures of P.W.1 and P.W.2 in the police station.
15) Sri N. Harinath, learned counsel, representing the learned counsel for the first appellant, would contend that P.W.1-the so-called mediator did not support the case of the prosecution. If his evidence that everything is prepared in the police station is considered, the accused should have been acquitted. P.W.2-another driver supported the case of the 16 prosecution. According to him, the so-called Ganja bags were found in the luggage rack of the RTC bus. If that be the case, possession of Ganja cannot be attributed to the first appellant. P.W.2 categorically testified this in chief examination and cross examination. The evidence on record did not prove the conscious possession of Ganja by the first appellant. Even otherwise, there is a violation of Sections 42, 43 and 50 of the NDPS Act. The evidence of P.W.3 did not reveal that they duly informed to the accused about their right to be searched before a Gazetted Officer or a Magistrate in compliance of Section 50 of the NDPS Act. Therefore, there is utter violation of Section 50 of the Act. The Hon‟ble Supreme Court categorically held in a decision in 2014 that violation of Section 50 of the Act would enure the benefit of doubt to the accused. He would further submit that he is filing the said decision. So, on account of non- compliance of the mandatory provisions as above, the first appellant is entitled for acquittal. He placed a memo on record as if he is relying upon the decision of the Telangana High Court in Athram Kashiram vs. State of Telangana, through Inspector, Prohibition and Excise Station, Utnoor, Adilabad District, reptd. By Public Prosecutor, High Court, Hyderabad1 and the decision of the Hon‟ble Supreme Court in 1 2022(1) ALT (Crl.) 208 (T.S.) 17 Criminal Appeal No.870 of 2016 and as if they dealt with the mandatory provisions of Section 50 of the Act. Apart from the above, he would place reliance in Gorakh Nath Prasad vs. State of Bihar2. He would rely upon the decision in Gurajant Singh @ Janta vs. State of Punjab 3 , contending that the Hon‟ble Supreme Court stressed compliance of Section 50 of the Act and failure to comply it would enure the benefit of doubt. With the above submissions, he seeks to allow the Criminal Appeal.
16) Sri Bhogadi Mallikharjuna Devarayalu, learned State Brief counsel, would canvass the contentions on the similar lines of the learned counsel for the first appellant and he represents that he would adopt the arguments advanced by the learned counsel on behalf of the first appellant.
17) Sri N. Sravan Kumar, learned Special Assistant to the learned Public Prosecutor, would contend that for obvious reasons P.W.1 turned hostile. P.W.2 supported the case of the prosecution. According to the evidence of P.W.3 coupled with Ex.P.2-mahazarnama, police seized Ganja when the bags were lying in front of their legs. The evidence of P.W.2 throws the discrepancy that the Ganja was found in the racks on the seat of 2 (2018) 2 Supreme Court Cases 305 3 2014(1) ALD (Crl.) 363 (SC) 18 the accused. He would strenuously contend that Ex.P.1 photographs which were taken after seizure of Ganja would reveal that size of bags is such that they cannot be put in luggage rack and they are big one. Even otherwise, P.W.3 categorically deposed in cross examination that as per Ex.P.2, they seized four bags on the seat of the accused. No contraversion was suggested to P.W.3 and his evidence is not challenged. There are number of decisions of the Hon‟ble Supreme Court which repeatedly held that Section 50 of the NDPS Act has no application when there was no personal search of the accused and this Court in various decisions dealt with the same by following the law laid down by the Hon‟ble Supreme Court. During routine checking of the vehicles only, the present case could be detected. It was not on the basis of any prior information. It is not the case of the prosecution or the evidence that on prior information, the raid was conducted. There is no proper cross examination as to non-compliance of Sections 42, 43 and 50 of the Act. There is no necessity to comply Section 50 of the Act because there was no prior information and further there was no personal search of both the accused. Section 50 of the Act had no application in such circumstances. When the recovery was effected in a public place, it was in accordance with Section 43 of the Act. With the above said contentions, the 19 learned Special Assistant to the learned Public Prosecutor seeks to dismiss the Criminal Appeal filed by the appellants.
18) In the light of the contentions advanced as above, firstly, this Court would like to delve into the factual aspects as to whether there is any cross examination as to the alleged non- compliance of Section 50 of the Act. Nothing is there in the testimony of P.W.1 to P.W.3 that they started checking the vehicles at Khaja tollgate, Mangalagiri on the basis of any prior information. During cross examination, a vague suggestion was put forth before P.W.3 that they did not follow the mandatory provisions in the case. What were the so-called mandatory provisions which were not followed by P.W.3 were not spelt out. However, it appears that during arguments before the learned I Additional Sessions Judge, accused got canvassed a contention as to the non-compliance of Sections 50 and 42 of the Act and the learned I Additional Sessions Judge did not find favour with the above said argument on the ground that there was no personal search under Section 50 of the Act and further when the recovery was effected in public place, there was no need to comply Section 42 of the Act. Though the above said reasoning is found to be cryptic, but this Court while deciding a case of conviction has to re-appreciate the entire evidence on record to ascertain as to whether there was any necessity for compliance 20 of mandatory provisions of NDPS Act and if so, whether they were complied with or not. So, on factual front, accused failed to confront with the testimony of P.W.3 in this regard.
19) Now, this Court would like to deal with relevant provisions under Section 50 of the NDPS Act to decide as to whether its compliance is necessary or not. It runs as follows:
50. Conditions under which search of persons shall be conducted.--
(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female. [(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which 21 necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.]
20) Now this Court would like to deal with the decisions cited by the learned counsel for the first appellant.
21) Turning to Athram Kashiram's Case (1 supra), absolutely, the above factual matrix is relating to errors in framing of charge and the discrepancies in the evidence. It has nothing to do with Section 50 of the Act as canvassed by the learned counsel for the first appellant.
22) Turing to the decision of the Hon‟ble Court in Criminal Appeal No.870 of 2016, it dealt with a situation whether the Hon‟ble Supreme Court considered the law as regards the principles relating to an appeal against an order of acquittal when an appeal is before the superior Courts. Even the above said decision also did not deal with Section 50 of the act as canvassed by the learned counsel for the appellant.
23) Turning to Gorakh Nath Prasad's case (2 supra), it is a case where the material witnesses turned hostile. While dealing with Section 50 and 42 of the Act, the Hon‟ble Supreme Court was of the view that as P.W.2 and P.W.3 turned hostile as if their signatures were obtained on a blank paper at police station, the issue whether there has been compliance with Sections 42 and 50 of the Act losses its relevance in the facts of 22 the case. So, in my considered view, the decision in Gorakh Nath Prasad's case (2 supra) is of no use to the case of the appellants.
24) Now, turning to another decision in Gurjant Singh @ Janta's case (3 supra), in the above said appeal there was a contention before the Hon‟ble Supreme Court by the appellant as to the non-compliance of Sections 50 and 42 of the Act. The factual matrix is that on 04.04.1996, S.I. Darbara Singh (P.W.6) was posted as S.H.O., Police Station, Sunam. He claimed that he along with other staff were present at „T‟ point in an area of village in connection with Nakabandi. At about 00-15 a.m., one tractor trolley was seen coming from the side of village Ugrahan. They stopped the tractor and that the driver, who tried to slip away, was caught hold of and the driver revealed his name as the appellant and the police party checked the trolley of the tractor and found three gunny bags lying inside the trolley. P.W.6 told to appellant that he intended to search the gunny bags as he suspected some incriminating articles in the gunny bags and if so desired, the search could be conducted in the presence of a Gazetted Officer or a Magistrate. The appellant was stated to have expressed his consent that it may be conducted in the presence of some Gazetted Officer or a Magistrate. Thus, they secured the presence of P.W.3, a DSP of 23 the police department, as a Gazetted Officer and in his presence they claimed to have searched gunny bags. So, the accused contended before the trial Court that there was no compliance of Sections 42 and 50 of the Act. The trial Court took the view that there was no necessity to comply Section 50 of the Act, as such, did not go into the question whether P.W.3 was a competent Gazetted Officer or not. The trial Court followed the decision in State of Punjab vs. Balbir Singh4. Accordingly, the appellant was found guilty. When the appellant filed an appeal before the High Court, appeal was dismissed. Then the matter went in appeal before the Hon‟ble Supreme Court. The Hon‟ble Supreme Court dealt with the factual aspects and held that both the trial Court and the High Court could not understand the law laid down by the Hon‟ble Supreme Court in Balbir Singh's case(4 supra). Ultimately, the Hon‟ble Supreme Court held that both the trial Court and the High Court committed errors while considering the case of the prosecution and reversed the judgment of conviction. It is on this decision the learned counsel for the first appellant would place reliance strongly to contend that as Section 50 of the Act is violated, the first appellant is entitled for an acquittal.
4 (1994) 3 SCC 299 24
25) This Court would like to make it clear that there are several decisions of the Hon‟ble Supreme Court reiterating that when there was no personal search, there is no question of compliance of Section 50 of the Act. Now, it is appropriate to refer the same here for better appreciation.
26) Firstly, a close perusal of Section 50 of the Act means that if the arrested person requires that he should be searched before a Gazetted Officer or a Magistrate, the empowering officer shall take him to the Gazetted Officer or Magistrate.
27) The law is well settled with regard to Section 50 of the Act. It has no application when there is no personal search of the accused. At this juncture, this Court would like to refer here the well established legal precedents under Section 50 of the Act.
28) In Bodaband Sundar Singh vs. State of A.P. 5 , there was a case where the investigating agency found contraband in possession of a box and zip bag of the accused. The trial court recorded conviction against the accused. Then, the matter went in appeal before the High Court of A.P. at Hyderabad. The High Court of A.P. referred various decisions and held that Section 50 of the N.D.P.S. Act would come into 5 (2001)2 ALD (Crl.) 928 (AP) 25 play only in the case of a search of a person as distinguished from search of any place etc. The High Court of A.P. in arriving at such a conclusion relied on a decision of the Hon‟ble Supreme Court in Kalema Tumba vs. State of Maharashtra 6 and further the Constitutional Bench decision of the Hon‟ble Supreme Court in State of Punjab vs. Baladev Singh7 . The High Court of A.P. by following the above said decisions held that the search of a person indicates search of the body of the person but not other belongings like hand bags, suitcases, etc., as such when there is search of a person, then only the procedure contemplated under Section 50 of the Act has to be resorted to.
29) The factual scenario in Kaleme Thumba's case (6 supra) before the Hon‟ble Supreme Court is that the contraband was recovered from the black coloured rexine bag of the accused and the Hon‟ble Supreme Court in the above said decision categorically held that the contention of the appellant is liable to be rejected because only when the person of an accused is to be searched then he is required to be informed about his right to be examined in the presence of Gazetted Officer or a Magistrate. The Hon‟ble Supreme Court in Kalema Tumba's case (6 supra) as referred to above, followed the 6 AIR 2000 SC 402 7 (1999) 6 SCC 172 26 Constitutional Bench decision of the Hon‟ble Supreme Court in Baldev Singh's case (7 supra). As seen from the above decision (5 supra), the Hon‟ble Supreme Court dealt with the issues under Section 50 of the Act and other mandatory provisions of the Act. When the matter was referred to a Constitutional Bench, the Hon‟ble Supreme Court dealt with the effect of non- compliance of Section 50 of the Act. The first conclusion at para No.57 (1) is as follows:
1. That when an empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section(1) of Section 50 of being taken to the nearest gazette officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.
30) Therefore, it means that when there was a proposal to search a person, it is imperative for the investigating officer to inform the accused about his right to be searched before a gazette officer.
31) In Saikou Jabbi vs. State of Maharashtra in Criminal Appeal No.103 of 20038, the Hon‟ble Supreme Court dealing with Section 50 of the Act and also by relying upon the earlier decisions in Kalema Tumba's case (6 supra) and Baladev 8 AIR 2003 SC 724 27 Singh's (7 supra), held that language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises and is not applicable to other types of search.
32) The factual matrix in the above said case is also such that the contraband i.e., article of heroin was hidden in a suitcase of accused at airport. The Hon‟ble Supreme Court dealing with the same categorically held at para No.11 as follows:
11. A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises. (See Kalema Tumba's case (6 supra) and Baldev Singh's case (7 supra) and Gurbax Singh vs. State of Haryana 9 .) The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh's case (7 supra).
Above being the position, the contention regarding non- compliance with Section 50 of the Act is also without any substance.
33) The Hon‟ble Supreme Court in State of Haryana v. Jarnail Singh and others10 also by following earlier decisions reiterated that Section 50 of the N.D.P.S. Act has no application 9 (2001) 3 SCC 28 10 (2004) 5 Supreme Court Cases 188 28 when the search of a Tanker was conducted because it was not a personal search.
34) Even as evident from the judgment in Jarnail Singh's case (10 supra), the factual matrix was that there was the search of a tanker moving in the public highway. The Hon‟ble Supreme Court categorically held at para No.6 as follows:
6. The same view has been reiterated in several decisions of this Court including Kalema Tumba's case (6 supra), Gurbax Singh's case (9 supra), Madan Lal vs. State of H.P. 11 , Birakishore Kar vs. State of Orissa 12 and Saikou Jabbi's case (8 supra). The language of Section 50 is clear and unambiguous and the law so well settled that it is not possible to take a different view. We must, therefore, hold that Section 50 of the NDPS Act did not apply to the facts of this case, where on search of a tanker, a vehicle, poppy husk was recovered. This not being a case of personal search, Section 50 was not applicable. Moreover, there was no prior information regarding the contraband being carried in a vehicle, and the recovery was the result of checking of the vehicle in the normal course.
35) Apart from this, the Hon‟ble Supreme Court in State of Rajasthan vs. Parmanand and another13 had an occasion to refer the Constitutional Bench decision in Baldev Singh's case 11 (2003) 7 SCC 465 12 (2000) 9 SCC 541 13 (2014) 5 Supreme Court Cases 345 29 (7 supra). The Hon‟ble Supreme Court extracted the observations as follows:
(1) That when an empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 being taken to the neared Gazetted Officer or to the nearest Magistrate for making the search. However, such information may not necessarily be in writing.
(2) That failure to inform the person concerned about the existence of his right to be searched before a Gazetted officer or a Magistrate would cause prejudice to an accused.
(3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazette officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazette officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act.
36) The factual matrix in the above referred decision is also that if merely a bag carried by a person is searched without there being any search of his person, Section 50 will have no application. But if bag carried by him is searched and his person is also searched, Section 50 will have application.30
37) It is to be noted that the decision of the Hon‟ble Supreme Court in Parmanand's case (13 supra) was rendered on 28.02.2014. The decision of the Hon‟ble Supreme Court relied upon by the learned counsel for the first appellant in Gurjant Singh @ Janta's case (3 supra) was rendered on 28.10.2013.
The Hon‟ble Supreme Court in Gurjant Singh @ Janta's case (3 supra) distinguished the facts there under with that of Balbir Singh's case (4 supra) on the ground that P.W.6 noticing that there was gunny bags in the tractor felt the need to invoke Section 50 of the Act and thereby to provide opportunity to the appellant for holding in search in the presence of gazette officer or a Magistrate and in such a scenario the principle in Balbir Singh's case (4 supra) could not be applied.
38) Coming to the present case on hand it is not a case where P.W.3 thought of to apply the benefit of Section 50 of the Act to the accused because he thought of to search the bags in possession of A.1 and A.2. It is not the case of the prosecution that he tried to secure any gazette officer. Obviously, the factual scenario in Parmanand's case (13 supra) cannot be applied to the present case on hand.
39) Having regard to the well established judgments of the Hon‟ble Supreme Court throughout consistently, this Court would like to follow the judgment of the Hon‟ble Supreme Court 31 in Parmanand's case (13 supra) which is subsequent to Gurjant Singh @ Janta's case (3 supra). In the light of the above, there is no merit in the contention of the appellants that there is no compliance of Section 50 of the Act. Absolutely, the case on hand reveals that it is not at all a case where compliance of Section 50 of the Act is necessary.
40) Coming to the contention of the accused that there was violation of Section 42 of the N.D.P.S. Act, now, I proceed to deal with the same. Firstly, this Court would like to deal with as to whether the compliance of Section 42 of the Act is necessary in this case and if so it is complied. Section 42 of the Act runs as follows:
2[42. Power of entry, search, seizure and arrest without warrant or authorisation.--
(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or 32 other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,---
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:
1[Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made there under, such power shall be exercised by an officer not below the rank of sub-inspector:
Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.] 33
41) A close perusal of Section 42 of the Act means that if the empowered officer has any information out of his personal knowledge or information given by any person and taken down in writing about the storage of any narcotic drug or psychotropic substance in any house, enclosed place or in any conveyance, he may between sunrise and sunset enter into and search any building, conveyance or place and seize such contraband. The proviso of Section 42 reveals that such search can be conducted between sunset and sunrise. When Section 42(1) contemplates search during day time, the proviso contemplates search during night time. According to Section 42(2) of the Act where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within 72 hours send a copy thereof to his immediate official superior.
42) Coming to the case on hand, as this Court already pointed out there is nothing in the case of the prosecution that they effected the recovery basing on prior information. Even it is not the defence of the accused as such. So, absolutely, there is no need or necessity to comply Section 42 of the Act.
43) Coming to Section 43 of the N.D.P.S. Act, it runs as follows:34
1[43. Power of seizure and arrest in public place.--Any officer of any of the departments mentioned in section 42 may--
(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.--For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.]
44) A close perusal of Sections 42 and 43 of the N.D.P.S Act, discloses that they are distinct and separate. Section 42 of the Act prescribed a specific procedure if there was specific information about the fact that drugs or psychotropic substances or controlled substances in respect of which an offence under the Act has been committed is kept or concealed in any building, conveyance or enclosed place. In such circumstances, a search is contemplated between sunrise and sunset subject to the procedure therein. It provides further search between sunset and sunrise by recording the grounds of plea. Coming to Section 35 43 of the Act, it contemplates power of seizure and arrest in public place by any officer contemplated in Section 42.
Therefore, Section 43 refers to the power of seizure and arrest in public place by the officers mentioned in Section 42. Nowhere it is provided in Section 43 of the Act that the procedure contemplated under Section 42 has to be followed.
45) Apart from this, the Hon‟ble Supreme Court in Jarnail Singh's case (10 supra) clearly held that "Section 42 and 43 contemplate two different situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, if a pubic conveyance is searched in a public place, the Officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and the sunrise. In the instant case, the tanker was moving on the public highway when it was stopped and searched. Section 43, therefore, clearly applied to the facts of the case. Thus there was no requirement of the Officer conducting the search to record the grounds of his belief as 36 contemplated by the proviso to Section 42. More so, when Superintendent of Police was also a member of the searching party."
46) There is no dispute that during routine vehicle checking, the Excise police party detected the present case in hand. Thus, it was in a public place. They served Section 165 Cr.P.C. search proceedings on the driver and thereafter they searched the vehicle. Absolutely, there is nothing to show that either Section 42 or Section 43 of the Act is violated.
47) This Court in Bosaga Suryakanth alias Suresh vs. State of Andhra Pradesh14 and Sangula Rambabu vs. State of A.P., rep. by the Public Prosecutor, High Court of A.P.15 by looking into the provisions of Section 50 of the Act and by looking into the well established legal principles enunciated by the Hon‟ble Supreme Court held that there is no need or necessity to comply Section 50 of the Act when there is no personal search.
48) Now this Court would like to deal with as to whether on factual aspects whether the evidence adduced by the prosecution before the learned I Additional Sessions Judge regarding the manner in which they claimed to have seized the 14 2023 CRI.L.J.1696 15 2023(2) ALT (Crl.) 281 (A.P.) 37 Ganja is convincing or not. As seen from the evidence of P.W.1, he testified about the travelling of A.1 and A.2 in their bus by boarding at Vijayawada. He also confirmed about the police checking at Khaja tollgate and seizure of the bags from the accused and after opening that, they found Ganja. According to him, Ex.P.1 is the positive photographs of four bags seized from the possession of the accused. What he deviated from the case of the prosecution is the so-called signing of the papers at the police station. During cross examination by the learned Additional Public Prosecutor, he confirmed that the contents of Ex.P.2 are correct. Thus, the contents of Ex.P.2 are that mahazarnama was prepared at the place of seizure. During cross examination by the learned defence counsel again he deposed that Ex.P.2 and samples were prepared at the police station. Therefore, for the reasons best known to him, his intention was to deviate in somehow or the other from Ex.P.2 as to the place in which it was prepared. Hence, it all shows that he exhibited negative attitude against the case of the prosecution. When he knows that the contents of Ex.P.2 are correct, he had no necessity to put his signature especially when it was allegedly prepared at the police station. To the extent P.W.1 supported the case of the prosecution can be taken into consideration and his evidence is consistent with that of the 38 evidence of P.W.2 and P.W.3 insofar as the fact that the accused boarded the RTC bus at Vijayawada and the police stopped the bus at Khaja tollgate and found possession of bags with them.
49) Now, turning to the evidence of P.W.2, his evidence reveals that everything was prepared at the place of recovery only. His evidence is consistent with the evidence of P.W.3, the Prohibition and Excise Inspector. He categorically deposed in cross examination that they were there for half an hour at tollgate and he signed on Ex.P.2 and M.O.1 at tollgate. It all shows that Ex.P.2 was prepared at the place of recovery. It is to be noted that according to the evidence of P.W.2, Ex.P.3 is the two tickets purchased by the accused to travel from Vijayawada. Nothing is suggested to P.W.1 and P.W.2 in cross examination that accused did not board the RTC Bus at Vijayawada and the police did not stop the bus at Khaja tollgate for the purpose of checking the vehicle. On the other hand, a vague suggestion is put forth before P.W.2 as if that police seized nothing from the possession of the accused and the accused are in no way concerned with the case. Similarly, a suggestion is put forth before P.W.3 that they did not find Ganja from the accused and they did not stop the bus and the accused are in no way connected with this offence and they planted M.O.1. P.W.2 and P.W.3 denied the respective suggestions. The 39 accused are not dare enough to suggest to P.W.1 to P.W.3 that they did not travel in APSRTC bus driven by both P.W.1 and P.W.2. So, the prosecution established cogently by virtue of the above evidence that both the accused boarded at Vijayawada in APSRTC and the said bus was stopped at Khaja tollgate, Mangalagiri during routine checking. The evidence adduced by the prosecution in this regard is fully believable.
50) According to the evidence of P.W.2 in chief examination and cross examination, the police found the bags from the upper rack on the seat of the accused. Basing on this, the contention of the accused is that the Ganja was not recovered in front of their legs and it was recovered from the luggage stand, as such, the possession cannot be attributed against them. It is to be noted that according to Ex.P.2- mahazarnama, A.1 was sitting in Seat No.11 behind the conductor seat. A.2 was setting in seat No.14 in the same row behind the driver seat and the case of the prosecution as evident from Ex.P.2 as well as the evidence of P.W.3 that bags were found in front of the legs of the accused. Thus, if the prosecution is able to prove that those four bags were found in front of the legs of A.1 and A.2, conscious possession thereof can be attributed against them. Insofar as the evidence of P.W.3 is concerned, it is consistent with the narration made in Ex.P.2 40 mahazarnama. It is to be noted that the learned defence counsel cross examined P.W.3 and he deposed in cross examination that as per Ex.P.2 they seized four bags at the seat of the accused. Nothing is suggested to P.W.3 in the cross examination by the learned defence counsel that those two bags were seized from the luggage rack. Therefore, the accused failed to confront with the evidence of P.W.3 that Ganja bags were found in the luggage rack. On account of this, the discrepancy between the evidence of P.W.2 and P.W.3 is of no use to the defence of the accused. P.W.2 deposed contrary to the contents of Ex.P.2-mahazarnama about place where the bags were lying. Apart from this, as evident from Ex.P.1-photograph and Ex.P.12-photographs, four bags are in big size and it is impossible to assume that those bags could be put in the luggage rack which is upper on the seats of the accused. Apart from this, a person who is carrying the contraband like Ganja in four big bags would not prefer to keep in the luggage rack, but he would like to keep the same within his controlled possession as A.1 and A.2 did by keeping the same in front of their legs. If Ex.P.1 and Ex.P.12 are looked into, it is very difficult to assume that they were seized from the luggage stand. Therefore, all these go to show that on account of the above discrepancy between the evidence of P.W.2 and P.W.3, the case of the 41 prosecution cannot be thrown out. This discrepancy is not going to affect the case of the prosecution in any way on account of the reasons furnished supra.
51) The evidence of P.W.3 reveals that after production of the accused before the learned jurisdictional Magistrate, he submitted the case property along with samples to the Court. Further he prepared inventory proceedings. He also sent a preliminary report to the superiors as regards the recovery on the same day. Through him in this regard Ex.P.7-the preliminary report and Ex.P.8-memo under Section 52(A) are marked. Further the jurisdictional Magistrate sent inventory accepted letter under Ex.P.10 to the trial Court. He sent samples under Ex.P.11-letter of advice to the analyst and Ex.P.12 is the analysis report. Thus, with regard to the above said investigation done by P.W.3, there is no cross examination pointing out any infirmity in the case of the prosecution.
52) In the light of the above, the evidence of P.W.2 and P.W.3 is consistent. There are no doubtful circumstances to disbelieve the case of the prosecution.
53) Except a vague plea that a false case is foisted against the accused and that nothing is recovered from their possession, accused have no probable say throughout trial. The place of recovery is said to be in RTC bus which was running 42 from Vijayawada to Tirupati. A.1 is resident of Bheemavaram, West Godavari District. A.2 is resident of Ananthasagaram Mandal, Nellore District. They have not put forth any circumstances before P.W.3 explaining the circumstances in which they came into custody of the Prohibition and Excise Police. Therefore, all these circumstances quietly establish the presence of the accused in APSRTC bus and this Court does not find any doubtful circumstances in this regard. The evidence of P.W.2 and P.W.3 consistently establishes the recovery of four bags from the possession of the accused. According to Ex.P.12- analysis report, the samples are of Ganja. Hence, by relying upon the evidence of P.W.2 and P.W.3 coupled with Ex.P.12- chemical analysis report, prosecution established that the samples that were drawn from the bags found in possession of the accused contained Ganja. So, as the prosecution could establish the recovery of contraband from the possession of the accused, there are certain presumptions in favour of the prosecution in view of the provisions of the NDPS Act.
54) Now, it is relevant to refer herein certain presumptions as contemplated under Section 35 of the N.D.P.S. Act. According to Section 35 of the Act, in any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such 43 mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. The explanation of the above shows that „culpable mental state‟ includes intention, motive knowledge of a fact and belief in, or reason to believe a fact. The Hon‟ble Supreme Court in Madan Lal's case (11 supra) held that once possession is established, then the person who claims that it was not a conscious possession has to establish it because how he came to be in possession is within his special knowledge.
55) According to Section 54 of the N.D.P.S. Act, it contemplates certain presumptions. According to the said section in trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused committed the offence under this Act in respect of any narcotic drug or psychotropic substance or controlled substance for the possession of which he fails to account satisfactorily.
56) It is no doubt true that the presumption under Section 54 of the N.D.P.S. Act and the presumption under Section 35 would arise after the prosecution discharged its burden to prove the recovery of the contraband from the accused. In my considered view, the prosecution discharged its burden about the recovery of contraband from the possession of 44 the accused. In such circumstances, it is for the accused to prove the contrary. The accused had no semblance of say much less probable say to prove contrary.
57) Having regard to the above, this Court is of the considered view that the prosecution before the learned I Additional Sessions Judge cogently established about the recovery of the contraband i.e., Ganja from the possession of A.1 and A.2 beyond reasonable doubt. As pointed out, according to Ex.P.12-analysis report, the samples are of Ganja. The prosecution did establish the link between M.O.1 with that of Ganja that was seized from the accused. In my considered view, the learned I Additional Sessions Judge rightly appreciated the evidence on record on factual and legal aspects and found guilty of the accused. It is a case where both the accused boarded RTC bus at one and same time and they were sitting in the RTC bus very close with each other. They were keeping Ganja bags in front of them. All these shows that both the accused were found in conscious possession of Ganja of 15 kgs x 15 kgs which amounts to commercial quantity of Ganja. 30 Kgs of Ganja seized together from both the accused can be attributed with them and it amounts to commercial quantity. The learned I Additional Sessions Judge imposed the minimum punishment as provided under law keeping in view of the punishment provided 45 for the offence under Section 8(c) r/w Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substance Act, 1985.
58) Viewing from any angle, this Court does not find any tenable reasons to interfere with the judgment of the I Additional Sessions Judge.
59) In the result, the Criminal Appeal is dismissed, as such, the judgment, dated 19.03.2010 in Sessions Case No.2 of 2010, on the file of I Additional Sessions Judge, Guntur shall stand confirmed.
60) The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the judgment of this Court to the trial Court on or before 19.10.2023 and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against A.1/first appellant and to report compliance to this Court.
61) The A.1/first appellant is directed to surrender before the Court below on or before 19.10.2023 and on such surrender, the learned I Additional Sessions Judge shall take necessary steps to entrust the conviction warrant. If A.1 fails to surrender on or before 19.10.2023, the learned I Additional Sessions Judge shall issue Non Bailable Warrant and shall take necessary steps to carry out the sentence imposed against him. 46
62) The Registry is directed to forward the record along with copy of the judgment to the I Additional Sessions Judge, Guntur with special messenger on or before 19.10.2023 and thereupon, the I Additional Sessions Judge shall send a copy of the judgment to the second appellant who is lodged in Central Prison, Rajahmundry.
Consequently, miscellaneous applications pending, if any, shall stand closed.
________________________ JUSTICE A.V. RAVINDRA BABU Dt. 12.10.2023.
Note: L.R. copy be marked.
B/o PGR 47 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU CRL. APPEAL NO.692 OF 2010 Note:-
Registry is directed to forward the record along with copy of the judgment to the I Additional Sessions Judge, Guntur with special messenger on or before 19.10.2023.
Date: 12.10.2023 LR copy be marked.
PGR