THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1403 of 2006 23-04-2014 BETWEEN:
Smt. B.L. Pushpa And another.
…..Appellants/A.1 & A.2 AND The State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad.
…..Respondent THIS COURT MADE THE FOLLOWING JUDGMENT:
THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1403 of 2006 JUDGMENT:
The Criminal Appeal is preferred by the appellants/A.1 and A.2 challenging the Judgment, dated 23.08.2006, in NDPS S.C. No.1 of 2003 passed by the I Additional District and Sessions Judge, Chittoor, whereby the learned Judge found the appellants/A.1 and A.2 guilty for the offence under Section 8(c) read with Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act and convicted and sentenced them to undergo rigorous imprisonment for a period of ten years each and to pay a fine of Rs.1,00,000/- (Rupees one lakh only) each.
The case of the prosecution is as follows:-
That the appellants herein are found in possession of 105 kgs of ganja containing in four bags while the officers were conducting routine raid. When the appellants were questioned, they confessed that the said bags contain ganja and that the investigation agency after availing the services of mediators, seized the contraband and completed all the formalities. The accused and the property were handed over to the Tirupathi Prohibition and Excise Station. Sample of ganja was sent for chemical examination and after receipt of the chemical examination report, the police filed charge sheet against the appellants/A.1 and A.2 for the offence under Section 8(c) read with Section 20(b)(i) of the NDPS Act.
To substantiate the case of the prosecution, P.Ws.1 to 7 were examined and Exs.P.1 to P.10 and M.Os.1 to 8 were marked on behalf of the prosecution. No oral or documentary evidence was adduced on behalf of the accused.
On appreciation of oral and documentary evidence, the trial Court found appellants/A.1 and A.2 guilty for the offence under Section 8(c) read with Section 20(b)(ii)(c) of the NDPS Act and convicted and sentenced them as stated above. Aggrieved by the said Judgment, the present appeal is preferred by the appellants/A.1 and A.2.
Heard and perused the record.
P.Ws.1 and 2, who are native of Tirupati, deposed that they were called by the police and were asked to act as mediators. When they went to the scene of offence, they saw one rickshaw having four bags and two persons in the rickshaw. One lady S.I., and one S.I., and four constables were there and constables enquired about the persons and the contents of the bags and they found ganja leaves in the bags. They deposed that they signed the panchanama, Ex.P.1. P.W.3, who is the then Sub Divisional Police Officer, deposed that they found one cycle rickshaw with male and female sitting on it and found four gunny bags of ganja. Then C.I., and S.I., who present there, verified in his presence and after opening the gunny bag, they found it was ganja. They weighed four gunny bags and found 30 kgs, 28 kgs, 25 kgs and 22 kgs of ganja respectively. In whose presence, Ex.P.1, panchanama, was drafted and contains his signature. P.W.4, the then Sub Inspector of Police and P.W.5, the then Inspector of Prohibition and Excise, deposed on the same lines of P.W.3. P.W.6, who worked as III Additional Judicial Magistrate of First Class, Tirupathi, deposed that he accorded permission to the police officials to draw samples from four gunny bags and in whose presence, the samples were drawn and contraband was sealed and labeled. P.W.7, the then Excise Inspector of Prohibition and Excise, took up investigation and sent letter of advice to the Court for sending samples to F.S.L and the report confirms that it was ganja.
The point for consideration is whether the mandatory provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) are complied with by the excise officials?
It is the case of the prosecution that on information, the excise officials seized the property, and as such, Section 42 of the NDPS Act does not apply to the case on hand. It is the case of prosecution that as per the provisions of Section 50 of the NDPS Act, the accused was searched and contraband was seized by the excise officials in the presence of the Gazetted Officer. It is to be noted that in the evidence of P.W.6, the Magistrate, deposed that on 15.08.2002, in whose presence and also in the presence of mediators, the samples were drawn and the remaining contraband was sealed and labeled. But, there is nothing on record to show that how the said contraband was sent to the Station House Officer for safe custody. Further, when the said contraband was produced on 03.01.2003 before the Court, the property was not having any seals. Hence, there is every possibility of tampering the seized property. Further, P.W.6 in his cross-examination categorically deposed that he cannot identify the property i.e., ganja seized by the excise officials. He further deposed that he cannot say the quantity of contraband seized by the excise officials and he was not informed about the quantity. Hence, in the absence of any substantial proof to show that the said gunny bangs contain seal and signature of the Station House officer, who was in charge of the said contraband after seizure, and as the possibility of tampering the seized contraband cannot be ruled out, this Court is of the view that the excise officials have not complied with the provisions of the NDPS Act, and as such, the accused are entitled for acquittal of the charges leveled against them. Therefore, the conviction and sentence imposed by the Court below against the appellants/A.1 and A.2 is liable to be set aside and is accordingly set aside.
In the result, the Judgment of the Court below in convicting and sentencing the appellants/A.1 and A.2 for the offence under Section 8(c) read with Section 20(b)(ii)(c) of the NDPS Act is hereby set aside. The bail bonds shall stand cancelled and sureties stand discharged. The fine amount, if any, paid by the appellants/A.1 and A.2 shall be refunded to them.
Accordingly, the Criminal Appeal is allowed. Consequently, the miscellaneous petitions, if any pending in this appeal, shall stand closed.
JUSTICE RAJA ELANGO 23.04.2014 pln