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IN THE COURT OF THE METROPOLITAN SESSIONS JUDGECUM
SPL. JUDGE FOR TRIAL OF NDPS ACT OFFENCES: VIJAYAWADA
Present: Sri A.V.Ravindra Babu,
Metropolitan Sessions Judge
Monday, this the 18th day of June, 2018
SESSIONS CASE NO.47/2017
(Previous number SC.213/2013)
(Cr.No.21/2013 of Rajahmundry Railway Police Station.)
COMPLAINANT:The State, Represented by The Inspector of Railway Police, Rajahmundry R.P. Circle. NAME OF THE ACCUSED:
1. Tamada Simhachalam @ Penkisetty, S/o Gavarisetty @ Polamma, 354 yrs, Rajaka, Kusumari Village, Terlam Mandal, Viainagarm District.
2. Ragala Raju, S/o Rami Naidu, 35 years, T.Kapu, Kapulu, Ramalayam, Vuyyuru Mandal and Mandal, Krishna District. (A2 abated) OFFENCE CHARGED: U/s. 8 (c ) r/w. 20 (b) (ii) (B) of NDPS Act.
PLEA OF THE ACCUSED: Not guilty
FINDING OF THE COURT & SENTENCE OR ORDER:
In the result, accused No.1 is found not guilty of the charge u/s 8 (c) r/w 20 (b) (ii) (B) of NDPS Act and he is acquitted u/s 235 (1) Cr.P.C., M.Os.1 and 2 shall be produced before the Drug Disposal Committee for the purpose of destruction after the appeal time is over and subject to the result of the appeal, if the appeal is filed. M.O.3 shall be destroyed by the Court and M.O.4 cash of Rs.180/ shall be confiscated to State after the appeal time is over and subject to the result of the appeal, if the appeal is filed. The bail bonds executed by the accused in terms of Sec.437A Cr.P.C., shall remain in force for a period of six months.
This Sessions Case coming on 11.06.2018 for final hearing
before me in the presence of Sri S.V.L.N.S.R.V.Prasad, FAC Addl. Public
Prosecutor for the State and of Sri T.R.K.Srinivas, Advocate for A1 and the case against A2 was abated on 8.3.2018 as died and upon perusing the oral and documentary evidence on record and heard arguments on both sides, and the matter having stood over till this day for consideration, this court delivered the following: 2
JUDGMENT
The State, represented by Inspector of Railway Police,
Rajahmundry R.P. Circle filed a charge sheet in Cr.No.21/2013 of
Rajahmundry Railway Police Station for the offence u/s 8 (c) r/w 20 (b)
(ii)(B) of NDPS Act alleging in substance that A1 and A2 are close associates. The offence took place at northern side last cement bench of platform No.1 of Rajahmundry. On 24.3.2013 L.W.4 I.Gopala Krishna,
Inspector of Railway Police, Rajahmundry received credible information about the ganja and he informed the same to the Deputy Superintendent of Police and made an entry in General Diary. He secured L.Ws.1 and 2
Neelapu Venkatya Ramana Reddy and Pothula Suresh Kumar and other police staff and proceeded to Railway Station. At 2.30 p.m., they found
A1 and A2 who tried to escape with their bags. They interrogated them and they revealed that they are in possession of ganja. At the request of the accused, the police secured Gazetted Officer. In the presence of
Gazetted Officer they were interrogated. The police found four bags and 11 packets of ganja. The ganja of A1 is 13 kgs., Ganja of A2 is 10 kgs.,
The police lifted samples and arrested the accused. A mediator report was drafted there. Accused were brought to the station and the investigating officer registered FIR in Cr.No.21/2013 and took up investigation. Accused were forwarded to remand. The chemical examiner opined that the samples are ganja. Hence the charge sheet.
2)Originally the case was taken on file in S.C.213/2013 by my predecessor. Copies of documents are furnished to them as required u/s 207 Cr.P.C. My predecessor in office framed charge u/s 8 (c) r/w 20 (b)
(ii)(B) of NDPS Act against the accused and explained the same to them, for which they pleaded not guilty and claimed to be tried.
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3)During the course of trial, on behalf of the prosecution,
before my predecessor P.Ws.1 and 2 were examined and Ex.P1 and
M.Os.1 to 4 were marked. While so, my learned predecessor returned the charge sheet to the police with a direction to present it before the I
Addl. District & Sessions Judge Court, Rajahmundry and the said order of my predecessor was on 1.10.2015 on the ground that the jurisdiction for the offence was at Rajahmundry. The charge sheet was represented
before the I Addl. District & Sessions Judge Court, Rajahmundry and the
I Addl. District & Sessions Judge, Rajahmundry by virtue of an order dt.1.12.2016 returned the charge sheet observing that the charge sheet cannot be taken again cognizance. Against the same, the police represented the charge sheet before my learned predecessor and my predecessor again taken the case and it was numbered as Sessions Case 47/2017. These things are detailed herein for the reason that in the depositions of P.Ws.1 and 2 SC.213/2013 is mentioned and in the deposition of P.W.3 the S.C.No.47/2017 is mentioned. However, the case is one and the same.
4)During the course of trial, totally on behalf of the prosecution P.Ws.1 to 3 are examined and Exs.P1 to P4 marked. M.Os.1 to 4 are marked on behalf of the prosecution.
5)After the case is numbered before this court, my predecessor issued NBW against A2 and in the meantime police filed a report that A2 died, as such the case against A2 was abated on 8.3.2018. So, the case is proceeded against A1.
6)After the closure of the evidence of the prosecution, A1 is examined u/s 313 Cr.P.C., with reference to the incriminating 4 circumstances appearing in the evidence let in by the prosecution, for which he denied the incriminating circumstances and stated that he has no defence witnesses and a false case is foisted against him.
7)Now in deciding the charge framed against the accused, the points that arise for consideration are as follows: (1) Whether the prosecution has proved that on 24.3.2013 at 2.30 p.m., found A1 was found in possession of ganja along with another person in the manner as alleged by the prosecution at Rajahmundry Railway Station?
(2) Whether the prosecution has proved that the mandatory provisions of the NDPS Act have applicable to the facts and if so they are complied in the detection and investigation of the case?
3) Whether the prosecution has proved the charge framed against the accused beyond reasonable doubt?
POINTS 1 TO 3:
8)To bring home the guilt of the accused the prosecution examined as many as three witnesses. Coming to the testimony of
P.W.1, he deposed that he is resident of Rajahmundry. He is salesman.
On 24.03.2013 at 2.30 pm., he was on platform No.1 in Rajahmundry
Railway station. The railway police Rajahmundry called him and Suresh to act as mediators. They accompanied with the police to the northern side of the platform and found A1 and A2 who were on the cement bench with bags started running. The Police detained them. They stated on interrogation that there was ganja in four bags. Railway Doctor who is
Gazetted officer was also present along with police. Accused gave consent that they have no objection for search by Railway Doctor. There was ganja in four bags. The total weight of ganja when weighed was 23 5 kgs. Police separated 100 grams of ganja from each bag. Identification slips were pasted to contraband and to the samples. A panchanama was drafted under Ex.P1. MO1 is the contraband and MO2 is the unspent portion of samples. The police also seized two cell phones and the cash of Rs.180/ MO3 is the two cell phones. MO4 is the cash of Rs.180/.
Coming to the testimony of P.W.2 she deposed that she is working as
Sr.Medical Superintendent, Health Unit, S.C. Railway, Rajahmundry, since 10 years. He is Gazetted Officer in the Central Government. On 24.03.2013 at about 2.30 pm., GRP., Rajahmundry Police issued requisition to her and requested her to come to platform No.1. Then she followed with GRP Police, Rajahmundry to the northern side of platform
No.1. She found the two accused along with bags in the custody of police. She found two mediators at that place. She informed A1 and A2 that she is Gazetted Officer and that she will conduct search of the bags.
Accused gave consent for search by her. She searched the bag and there were 11 packets and total weight of ganja in the 11 packets was 23 kgs.
It was weighed before her. Four samples were drawn from the contraband. The police also seized cash of Rs.140/ and Rs.40/ respectively and further seized one cell phone each from A1 and A2. A
Panchanama was drafted under Ex.P1. She signed in it. MO1 is the contraband. MO.2 is the unspent portion of sample. MO3 is the two cell phones. MO4 is the Cash. Coming to the testimony of P.W.3 he deposed that he has been working as Inspector of police, CID, Rajahmundry since 17.10.2016. Previously he worked as Inspector of police, GRP,
Rajahmundry from 1.3.2013 to 5.4.2013. On 24.3.2013 at about 02.00
P.M., he received information about the illegal transportation of Ganja.
Then he secured the presence of P.W.2 by sending a requisition from
Railway Hospital, Rajahmundry with a request to act as Gazetted Officer 6 at platform No.1 of Railway station at Rajahmundry. He secured the presence of mediators i.e., P.W.1 and P.Suresh Kumar. He along with his staff went to northern side end of platform in Rajahmundry railway station. He found two persons who sat on cement bench. They tried to abscond on seeing the police. They caught hold of them and interrogated them. They reveled their identity particulars as A1 and A2.
He found Ganja with them in their hands in the zip bags. He seized the same. He seized two mobiles. He seized cash of Rs.180/. He drafted mediators report. He lifted samples and seized the samples. He lifted 4 samples of 100 grams each. He affixed identity slips on the samples containing the signatures of the mediators, himself, Gazetted Officer and
Accused. He brought the Accused and property to the station. He registered the mediators report as a case in Crime No.21/13 U/s 8 (c) r/w 20 (b) (ii) (B) of NDPS Act and issued FIR. Ex.P2 is FIR. He forwarded the Accused for remand. He forwarded the samples to the chemical analyst on 30.3.2013 under the cover of letter of advice. Ex.P3 is the copy of letter of advice. Subsequent investigation was done by his successor. His successor received chemical analysis report and filed charge sheet. Ex.P4 is the chemical analysis report.
9)The learned Addl. Public Prosecutor FAC contended that
P.Ws.1 and 2 supported the case of the prosecution and P.W.2 is the
Gazetted Officer and there is nothing in the crossexamination of the prosecution witnesses to disbelieve their evidence and mandatory provisions of NDPS Act have no application. However P.W.3 claimed to have complied Sec.50 of NDPS Act and the evidence adduced is convincing and consistent, as such accused are liable to be convicted.
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10)The learned defence counsel contended that P.W.1 is a stock mediator. P.W.2 who claimed to have acted as Gazetted Officer deposed certain facts and the evidence of P.W.1 and P.W.2 suffers with discrepancy. There is no identity established by the prosecution to show that the self same samples that were seized under Ex.P1 were forwarded and produced before the court. The investigating officer has no answer as to why he could not lift 11 samples. He claimed to have lifted four samples. Mahazar does not reveal that samples were lifted from all packets. The prosecution did not explain as to what happened to other samples. There is serious irregularity on the part of the investigating officer in lifting samples. There is no evidence to show that from howmany packets samples were lifted. The sample under M.O.2 has nothing to do with the sample which was claimed to be lifted. There is no evidence to show that the sample contained ganja. The prosecution did not establish the identity of samples. He further contended that in view of the serious discrepancy and for want of identity of sample the accused are entitled for acquittal.
11)In the light of the above rival contentions advanced and the points framed, firstly this court would like to deal with as to whether compliance of Section 50 of NDPS is necessary, if so, whether it is complied by the investigating officer. According to Section 50 of NDPS
Act if the person arrested so requires that he shall be produced before a
Gazetted Officer, then he shall be taken to a Gazetted Officer for the purpose of search. The case of the prosecution is that police found A1 and A2 on the northern side of platform No.1 of Rajahmundry Railway
Station on the cement bench with bag. So, it is the case of the prosecution that accused were found in possession of bag containing 8 ganja. Virtually there is no search and it is not a case where ganja is recovered on account of any personal search of the accused. Compliance of Section 50 of the Act is not necessary. However P.W.3 claimed to have produced P.W.2, who is the Medical Superintendent, Health Unit,
S.C.Railway, Rajahmundry to act as Gazetted Officer. Ultimately, it is a matter of appreciation to decide as to whether the evidence adduced by the prosecution is believable. In so far as compliance of Sec.50 of the
NDPS is concerned, it is not necessary.
12)Now, this court has to decide as to whether the evidence adduced by the prosecution is convincing and it can be a basis to sustain a conviction against the accused.
13)Coming to the evidence of P.W.1 in crossexamination he deposed that he did not depose in any cases of G.R.P., Rajahmundry
before this court or Railway Court. Police served notice on him at about
3.00 p.m., They went there after the accused were caught hold. There were also passengers and owners of shops. The police did not call passengers or shop owners to act as mahazar witnesses. Doctor came there at 2.00 p.m. C.I., questioned the accused. Doctor did not question the accused. C.I., signed as scribe. Now, he cannot say which bag was found with which of the accused. He cannot say whether it was in loose condition or in packets. He cannot say now from which bags M.Os.1 and 2 are lifted. He cannot say whether the samples were weighed or not. He do not remember whether ganja was weighed in his presence.
He cannot say whether any other articles were seized from the accused.
He denied that he is deposing false.
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14)P.W.2 in crossexamination deposed that at 2.30 p.m., on 24.3.2013 police came to her. From her house she reached Railway
Station within five minutes. At 3.00 p.m., they reached platform in the
Railway Station. She did not serve any notice on A1 and A2 before search. She did not obtain their written consent for search. She never intimated to the accused that she is a Gazetted Officer. She cannot say which bag was found with which of the accused. She cannot say from which bag which of the sample was lifted. Four samples were lifted on that day. There was no mention in the mahazar about four samples.
She cannot say from which of the bag 11 samples were lifted. She denied that she is deposing false.
15)P.W.3 in crossexamination denied that P.W.1 is a stock witness. There is no mention in the mahazar that they informed to the accused about their right to be searched before Gazetted Officer. They did not mention in the mahazar the weight of each bag separately. They found totally four bags with accused. According to mahazar 4 bags contained 11 packets. He did not lift 11 samples. There is no mention in the mahazar about the quantity of samples and number of samples.
Mahazar does not disclose where the samples were preserved (nature of covers). He denied that he is deposing false.
16)In so far as the participation of P.Ws.1 and 2 in the raid is concerned, absolutely there is no denial in the testimony of P.W.1. So, their evidence corroborates the evidence of P.W.3. The factum of raid conducted by P.W.3 and the detection of A1 and A2 is not denied in the manner as alleged.
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17)It is not sufficient on the part of the prosecution to succeed in the trial simply because P.W.3 caught hold of accused and another while they were in possession of four bags. The prosecution should prove that the bags contained ganja.
18)Keeping in view, now I would like to appreciate the evidence on record. It is the bounden duty of the prosecution to establish that the samples which were alleged to be lifted under the cover of Ex.P1 and now they are produced before the court under the cover of M.O.2 are the self same sample. To appreciate the same it is pertinent to look into the very contents of Ex.P1. A perusal of Ex.P1 means that A1 and A2 were found in possession of four bags. It reads that in the bag of A1 six packets were found and in the bag of A2 5 packets were found. The prosecution has alleged that total packets were 11 in number and total weight is 23 kgs., It reads that Indian Railway Police officials lifted samples from the packets. Its meaning that he lifted samples from 11 packets. There is no specific mention that only four samples were lifted. According to
Ex.P3 letter of advice only four samples were sent for chemical analysis.
Each packet was consisting of 100 grams. Ex.P4 chemical analysis reveals that only four polythene covers were received. So, the investigating officer lifted four samples according to the case. The sample under Ex.P1 means to say that the investigating officer lifted sample from 11 packets. Infact sample should be lifted from 11 packets.
Now what is deposed during the course of evidence by P.Ws.1 and 3 if considered police lifted only four samples. As admitted by P.W.4 there is no whisper in the mahazar where the samples were preserved i.e., nature of covers. He admitted that mahazar does not disclose where the samples were preserved. He admitted that there is no mention in 11 mahazar about the quantity of sample and number of sample.
Investigating officer should explain as to how he could say that he lifted four samples when the mahazar reveals that he lifted samples from 11 packets. The normal things which either P.W.2 or P.W.3 had to do is to take sample from each packet 11 in number. There is no mention in
Ex.P1 only fours samples were lifted. Taking four samples is contra to the contents of Ex.P1. The evidence of P.Ws.1 and 3 that they lifted four samples is contra to the contents of Ex.P1. Even otherwise there is no identity of the samples in Ex.P1. So, absolutely there is no basis for the prosecution to allege that M.O.2 four samples are lifted from 11 bags as mentioned in Ex.P1. The prosecution miserably failed to establish a link between the socalled samples which were said to be lifted under Ex.P1 and which are produced in the court under the cover of M.O.2. Apart from this none of the prosecution witnesses say from which bag which sample was laifted. Under the above circumstances, the prosecution has miserably failed to establish a link to connect M.O.1 sample with that of
M.O.2. If the prosecution failed to establish such crucial aspect, their case that they found A1 and A2 in Railway Station in possession of bags which contained ganja is of no use. The investigating officer did not take the minimum care to keep the identity of the samples to be born out by the record and as the prosecution has no basis to prove M.O.1 without having proper description in Ex.P1 the finding in chemical analysis report cannot be connected with the accused. Hence, I am of the considered view that the prosecution has to prove the factum of seizure in the manner as alleged, and in the absence of the same benefit of doubt is to be given to the accused. Hence, the accused is entitled for acquittal.
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19)In the result, accused No.1 is found not guilty of the charge u/s 8 (c) r/w 20 (b) (ii) (B) of NDPS Act and he is acquitted u/s 235 (1)
Cr.P.C., M.Os.1 and 2 shall be produced before the Drug Disposal
Committee for the purpose of destruction after the appeal time is over and subject to the result of the appeal, if the appeal is filed. M.O.3 shall be destroyed by the Court and M.O.4 cash of Rs.180/ shall be confiscated to State after the appeal time is over and subject to the result of the appeal, if the appeal is filed. The bail bonds executed by the accused in terms of Sec.437A Cr.P.C., shall remain in force for a period of six months.
Dictated to the GradeII Steno of this Court, transcribed by him,
corrected and pronounced by me in open court, this the 18th day of June, 2018. Sd/ A.V.Ravindra Babu
Spl. Judge for Trial of NDPS Act Cases, cumMetropolitan Sessions Judge, Vijayawada.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED ON BEHLAF OF
FOR PROSECUTION FOR DEFENCE
PW1 Neelapee Venkata Ramana Reddy. PW2 Dr.N.Venkata Surya Kumari. PW3 I. Gopala Krishna. CI.
DOCUMENTS MARKED ON BEHALF OF PROSECUTION:
Ex.P1 24.03.2013 Mediators Report drafted at 2.30 pm., Ex.P2 24.03.2013 FIR in Cr.No.21/2013 of G.R.P.S., Vijayawada. Ex.P3 30.03.2013 Letter of advise. Ex.P4 09.04.2013 CE Report.
DOCUMENTS MARKED ON BEHALF OF DEFENCE : Nil 13
MATERIAL OBJECTS MARKED:
MO1 Contraband.
MO2 Unspent Portion of Samples.
MO3 2(Two) Cell Phones.
MO4 Cash of Rs.180/.
Sd/ A.V.Ravindra Babu
Spl. Judge for Trial of NDPS Act Cases, cumMetropolitan Sessions Judge, Vijayawada.
//By order//
Chief Administrative Officer,
Metropolitan Sessions Judge’s Court,
Vijayawada.
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TABULAR FORM TO BE APPENDED TO THE JUDGMENT AS
PER RULE 67 OF THE CRIMINAL RULES OF PRACTICE
SC. No.47/2017
(Crime No.21/2013 of Government Railway Police Station, Rajahmundry)
01.Serial No.:
02.Sessions Case No.:S.C.NO. 47/2017
03.P.R.C.No.:
04.Crime No. & Name of:Crime No. 21/2013 of Government Railway the Police Station.Police Station, Rajahmundry .
05.Description of the accused:
1) Tamada Simhachalam @ Penkisetty, S/o Gavarisetty @ Polamma, 354 yrs, Rajaka, Kusumari Village, Terlam Mandal, Viainagarm District.
2) Ragala Raju, S/o Rami Naidu, 35 years, T.Kapu, Kapulu, Ramalayam, Vuyyuru Mandal and Mandal, Krishna District. Case against A2 abated)
06.Date ofa) Offence:2432013
b) Complaint:2432013
c) Apprehension:24.3.2013
d) Released on Bail:
e) Commitment:
f) Commencement of trial:5.2.2015
g) Closure of trial:25.4.2018
h) Sentence of Order:18.6.2018
07.RESULT:
In the result, accused No.1 is found not guilty of the charge u/s 8 (c) r/w 20 (b) (ii) (B) of NDPS Act and he is acquitted u/s 235 (1) Cr.P.C.,
M.Os.1 and 2 shall be produced before the Drug Disposal Committee for the purpose of destruction after the appeal time is over and subject to the result of the appeal, if the appeal is filed. M.O.3 shall be destroyed by the Court and M.O.4 cash of Rs.180/ shall be confiscated to State after the appeal time is over and subject to the result of the appeal, if the appeal is filed. The bail bonds executed by the accused in terms of Sec.437A Cr.P.C., shall remain in force for a period of six months.
15 08Explanation for the Delay: . This case was taken on file on 31.05.2017. On 28.1.2014 the accused were examined and framed charge against them for the offence U/s.8 (c ) r/w. 20 (b) (ii) (B) of NDPS Act read over and explained to them in Telugu and they pleaded not guilty and claimed to be tried. On 5.02.2015 P.W.1 was examined, Ex.P.1 marked and Mos.1 to 4 marked. On 16.4.2015 PW.2 was examined. On 25.4.2018 PW.3 was examined and Ex.P.2 to P.4 marked. On 27.4.2018 accused was examined under Sec.313 Cr.P.C., and on 11.6.2018 arguments heard and on 18.6.2018 Judgment
pronounced. Hence, there is no delay.
Sd/ A.V.Ravindra Babu Spl. Judge for Trial of cases U/NDPS Act, Cum Metropolitan Sessions Judge,
VIJAYAWADA.
To
The Registrar (Judicial),
Hon’ble High Court of Judicature at Hyderabad
for the State of Telangana and the State of Andhra Pradesh.