A. Venkateswara Reddy

IN THE COURT OF THE SPECIAL SESSIONS JUDGE FOR TRIAL OF

NDPS CASES (I-ADDITIONAL SESSIONS JUDGE) WARANGAL

Wednesday, this the 26th day of June, 2013

PRESENT:A.Venkateswara Reddy, Special Sessions Judge for Trial of NDPS Cases-cum- I-Additional Sessions Judge, Warangal.

N.D.P.S. SESSIONS CASE NO.82 OF 2006

(Cr.No.106/2005 of PS Shayampet)

1.Name and description of the :The State of A.P. rep. by the Sub- complainantInspector of Police, PS Regonda.

2.Name and description of the : Thota Rajaiah @ Malakpet accusedRajaiah, s/o Iylaiah, Aged: 45 years, Munnurukapu, Occu: Agriculture, R/o Koppula.

3.Offence charged:Sec.8(b) r/w 20 of Narcotic Drugs and Psychotropic Substances Act.

4.Plea of the accused:Pleaded not guilty

5.Finding of the Court:Found not guilty

6.Conviction, sentence or acquittal:The accused is found not guilty for contravention of Section 8(b) of NDPS Act punishable under Section 20(b)(i) of NDPS Act, and accordingly, he is acquitted for the same under Section 235(1) of Cr.PC. His bail bonds, if any, shall stand cancelled. MO1 shall be destroyed on expiry of appeal time.

7.Name of the Counsel for the :Addl. P.P. prosecution

8.Name of the counsel for accused:Sri B.Venkatram, Advocate

This case coming on 20.6.2013 for hearing before me in the presence of

Additional Public Prosecutor for the State/complainant and of Sri

B.Venkatram, Advocate for the accused and having stood over for consideration till this day, the Court delivered the following:

:: J U D G M E N T ::

1.The State represented by the Sub-Inspector of Police, PS Regonda, filed this case against the accused alleging that he has contravened the provisions of

S.C.No.82 of 20062

Section 8(b) of Narcotic Drugs and Psychotropic Substances Act (for short,

NDPS Act) punishable under Section 20(b)(i) of NDPS Act and the same was taken on file on same section of law.

2.The brief facts that are necessary for disposal of prosecution case may be stated as follows:

i)That on 21.12.2005 PW1 along with his staff, panch witnesses, Village

Secretary and the photographer proceeded to Koppula village, on reliable information about illegal cultivation of ganja. LW9-Md.Ibrahim, MRO also participated at the time of inspection, they have inspected the land in Sy.No.120, found ganja cultivation, there were in all five thousand ganja plants, samples were lifted under cover of panchanama, all the ganja plants were up rooted, destroyed in the presence of MRO, who issued destroyal orders, photographs were also obtained. On the report of PW1, this case was registered in

Cr.No.106/2005 under Section 8(b) r/w 20 of NDPS Act and the investigation was taken over by PW7. He recorded the statements of witnesses, sent the samples for analysis, affected the arrest of the accused on 19.1.2006 and also collected attested copy of pahani. Investigation discloses that the accused has contravened the provisions of Section 8(b) punishable under Section 20(b)(i) of

NDPS Act.

3.That on appearance of the accused, copies of relevant papers, as required under Section 207 of Cr.PC were furnished to him. Upon hearing and on perusal of record, a charge for the offence under Section 8(b) r/w Sec.20(b)(i) of NDPS Act was framed against the accused, read over and explained to him and he denied the said charge and claims to be tried.

4.During the trial, to bring home the guilt of the accused, on behalf of the prosecution in all examined PWs 1 to 7 and Exs-P1 to P9 and MO1 are marked and reported closure of prosecution evidence.

S.C.No.82 of 20063

5.There upon, the accused is examined under Section 313 of Cr.PC with regard to incriminating evidence found against him, he denied the said evidence and reported that he has no defence evidence.

6.Heard on both sides.

7.Now, the points that arise for consideration are:

I ) whether the prosecution is able to establish that the accused is the possessor of the land in Sy.No.120 of Koppula village?

II ) Whether the accused cultivated ganja in the said land in Sy.No.120 during the period 2005-2006 and contravened Section 8(b) of NDPS Act punishable under Section 20(b)(i) of NDPS Act, 1985, as alleged

beyond any reasonable doubt?

8.POINT NOs. I AND II:For the sake of convenience and to avoid repetition, both the points are settled together as under.

9.Precisely the prosecution has relied on the following evidence:

i)PW1 is the SI of Police, conducted raid.

ii)PWs 2 and 3 are the independent eye witnesses to the incident.

iii)PW4 is the photographer.

iv)PW5 is the Village Secretary and also panch witness for seizure panchanama as in Ex-P1, destruction panchanama as in Ex-P2, he issued Ex-P6/pahani.

v)PW6 is the then Head Constable, registered this case, whereas,

PW7 is the Investigation Officer.

10.PW1 has testified that on 21.12.2005 on reliable information, he along with

PWs 2 to 5 and MRO Shayampet, inspected the land in Sy.No.120 of Koppula

S.C.No.82 of 20064 village, belonging to the accused and the said land was identified by PW5, there was cotton crop in existence along with banana plants. They also found five thousand ganja plants, all the ganja plants were up rooted, samples were lifted under cover of Ex-P1/panchanama, whereas, Ex-P2 is the destruction panchanama. Ex-P3 is the photographs. In the cross-examination, this witness stated that it is not mentioned in the panchanama about the extent of the land in

Sy.No.120 and neither the accused nor any neighbours were present at the time of inspection and he did not mention the names of the neighbours in the panchanama.

11.PWs 2 and 3 are the eye witnesses to the said panchanama/Ex-P1. Both the witnesses belong to Koppula village, but they turned hostile, did not support the case of prosecution.

12.PW4 is the photographer, who obtained Ex-P3/photographs at the instance of police.

13.PW5-K.Venu is the then Village Secretary, he is star witness for prosecution, he is cited and examined for identification of the land of the accused, he is a panch witness for seizure panchanama and destruction panchanama also has issued Ex-P6/pahani. His evidence is to the effect that in

December, 2005, at the request of police, he accompanied the police to the land of the accused along with LW9-Md.Ibrahim, the then MRO Shayampet, there were about 600 ganja plants, panchanama was conducted, all the ganja plants were up rooted, thrown as heap and burnt away. This witness stated that since, it was not convenient, the panchanama for seizure of ganja plants and panchanama for destruction as in Ex-P1 and Ex-P2 were only recorded in the

Gram Panchayat Office, his signatures were obtained on some slips, police also lifted samples, but when it was kept in the covers, he did not observe the same.

In the cross-examination, this witness stated that the neighbours who were present near the land came at the request of officials, but neither the police officials nor the MRO enquired with the neighbours as to how the name of the

S.C.No.82 of 20065 accused is recorded as share-holder to the extent mentioned against his name and he did not witness as to what was kept in the covers, but his signatures were obtained on some slips and he cannot identify all the persons of the village, where he worked as Village Secretary.

14.PW6 is the then Head Constable, issued FIR as in Ex-P7, based on the report of PW1.

15.PW7 is the Investigation Officer, he received CD file from PW6, gave a requisition to Tahsildar-Md.Ibrahim (LW9 reportedly died) and Ex-P2/destruction panchanama was conducted, obtained Ex-P8/destroyal orders, examined the witnesses, collected Ex-P6/pahani from PW5. The Analyst, who examined the sample, opined that the sample contains ganja. In the cross-examination, this witness stated that he did not collect any document or examined the pattear, whose name is found in column No.12 of Ex-P6 to show that the accused is the purchaser of the said land and denied other suggestions given to him.

16.In Section 8(b) of NDPS Act cultivation of ganja or cannabis plant is prohibited and Section 20(b)(i) of the said Act, such cultivation of ganja plants is made punishable with imprisonment and fine.

17.In order to prove the guilt of the accused, it must be established by the prosecution that the accused has cultivated this prohibited plant. There must be some supporting evidence to prove that the accused cultivated ganja plants and it is not enough that few ganja plants were uprooted and they were burnt in the fields of the accused.

18.The prosecution has relied on the evidence of PWs 2, 3 and 5 and the contents of Ex-P6/pahani to establish the identity of the accused and to locate the land. PWs 2 and 3 are the independent eye witnesses resident of Koppula village, both of them turned hostile did not support the case of prosecution. PW5 is the then Panchayat Secretary, his evidence is to the effect that the land was identified with the help of neighbours. It is pertinent to note that as per the

S.C.No.82 of 20066 evidence of PW1 (the officer conducted raid) neither the accused nor the neighbours were present at the time of inspection. Similarly, PW7 did not go to the scene of offence nor he has examined any neighbours at the scene of offence. That apart, as per the evidence of PW5, the scene of offence panchanama as in Ex-P1, destruction panchanama as in Ex-P2 were conducted in the Gram Panchayat Office, whereas, according to the evidence of PW1 and the recitals in Ex-P1 and Ex-P2, they were conducted in the land of the accused in Sy.No.120 of Koppula village. Thus, there is inconsistency in the evidence of

PWs 1 and 5 and the contents of Ex-P1 and Ex-P2 as to the place of conducting panchanama and the manner of lifting samples and the presence of the neighbouring land owners at the time of conducting panchanama and it is goes to the root of the prosecution case by giving the benefit of doubt in favour of the accused.

19.Ex-P6 is the attested copy of pahani in respect of land in Sy.No.120, it is totally admeasuring Ac.7.39 guntas, wherein, the name of one Shankar Rao is recorded as pattedar for the total extent, whereas, the name of the accused is recorded as possessor only to the extent of Ac.3-36 guntas as purchaser. But, in column Nos.21 to 23 in respect of entire extent of land in Sy.No.120, it is shown as cotton, banana and ganja crops. The pattedar is not examined. It is not elicited in the entire evidence of prosecution whether the remaining land in

Sy.No.120 is kept fallow or either cultivated by the pattedar or by some other persons. In my humble opinion this evidence on record is not sufficient to establish that the accused is only responsible for questioned ganja cultivation in the land in Sy.No.120, in the absence of demarcation of the land to an extent of

Ac.3-36 guntas out of Ac.7-39 gutnas and specific evidence about precise boundaries of the land of the accused.

20.In a prosecution for contravention of Section 8(b) of NDPS Act, the question is whether the accused cultivated the ganja in an area of land lying in his exclusive possession.

S.C.No.82 of 20067

21.In the present case it is alleged by the prosecution that the accused is in exclusive possession of Ac.3-36 guntas of land in Sy.No.120. But, the evidence of PWs 2, 3 and 5 is not convincing. PW5 has only stated that the land was identified with the help of neighbours, whereas, PW1 has stated that with the help of PW5 and MRO Md.Ibrahim (LW9) the land was identified. Whereas, according to Ex-P6/pahani, the total extent of land in Sy.No.120 is Ac.7-39 guntas and in column Nos.21 to 23, the crops stated therein are found in the entire extent of Ac.7-39 guntas and not confined to Ac.3-36 guntas said to have been in the possession of the accused. PW7 has not prepared any map specifying the land in cultivation of the accused in Sy.No.120. In other words, the prosecution has miserably failed to prove the crucial aspect that the accused was in exclusive possession of Ac.3-36 guntas in Sy.No.120 and he alone is responsible for questioned cultivation of ganja. In the absence of examination of pattedar and other cultivators in the remaining extent of land in Sy.No.120, it is not safe to base a conviction on the testimony of PWs 1 to 7 and the contents of

Ex-P6/pahani, which does not inspire confidence.

22.Consequences for contravention of Section 8(b) of NDPS Act are disastrous, he has to be punished severely, therefore, we expect a serious exercise on the part of prosecution to adduce best evidence in the matter of proving the case beyond all reasonable doubts. Unfortunately, the prosecution has not done so. On going through the evidence, I am not convinced and satisfied that the accused alone is responsible for questioned cultivation of ganja and it is found in his exclusive possession.

23.The fundamental principle of criminal jurisprudence is that every person is presumed to be innocent unless he is proved to be guilty. Considered as a whole, the case of the prosecution may be true, but there is a long gap in between “may be true” and “must be true”, the entire gap has to be filled-in by the prosecution with legally acceptable and convincing evidence. But, in the case on hand, such gap is not filled-in by the prosecution and a reasonable doubt

S.C.No.82 of 20068 is created in the case of prosecution about the accused cultivating the land where the questioned ganja plants were found. Therefore, in my considered opinion, the accused is entitled for benefit of reasonable doubt.

24.For the aforesaid reasons and conclusions, I am of the considered opinion that the prosecution has miserably failed to establish the guilt of the accused for contravention of Section 8(b) of NDPS Act punishable under Section 20(b)(i) of

NDPS Act, as alleged beyond reasonable doubt.

The point Nos. I and II are accordingly answered against the

prosecution and in favour of the accused holding that the prosecution has

miserably failed to establish that the accused has contravened the

provisions of Section 8(b) of NDPS Act.

25.IN THE RESULT, I find the accused not guilty for contravention of Section 8(b) of NDPS Act punishable under Section 20(b)(i) of NDPS Act, and accordingly, he is acquitted for the same under Section 235(1) of Cr.PC. His bail bonds, if any, shall stand cancelled. MO1 shall be destroyed on expiry of appeal time.

(Dictated to the Personal Assistant, after his transcription, corrected and

pronounced by me in the Open Court, on this the 26th day of June, 2013).

SPECIAL SESSIONS JUDGE FOR NDPS CASES,

WARANGAL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

PW1:S.V.Raghavender Rao/de-facto complainant/ - None - the then SI of Police, Shayampet. PW2:Kanakam Raghu/eye witness PW3:K. Venkatamallu/eye witness PW4:S. Raja Bhadraiah/photographer PW5:K. Venu/Village Secretary/panch witness PW6:P. Pochalu/the then Head Constable PW7:M. Bharath Kumar/Investigation Officer

EXHIBITS MARKED

FOR PROSECUTION:

Ex-P1 is the scene of offence panchanama. Ex-P2 is the destruction panchanama.

S.C.No.82 of 20069

Ex-P3 are the photographs along with negatives. Ex-P4 is the 161 Cr.PC statement of PW2. Ex-P5 is the 161 Cr.PC statement of PW3. Ex-P6 is the attested copy of pahani. Ex-P7 is the FIR. Ex-P8 is the destruction certificate. Ex-P9 is the analysis report.

FOR DEFENCE:

- Nil -

MATERIAL OBJECTS MARKED

MO1 is the sample.

SPECIAL SESSIONS JUDGE FOR NDPS CASES,

WARANGAL.

IN THE COURT OF THE SPECIAL SESSIONS JUDGE FOR TRIAL OF

NDPS CASES (I-ADDITIONAL SESSIONS JUDGE) WARANGAL

Wednesday, this the 26th day of June, 2013

PRESENT:A.Venkateswara Reddy, Special Sessions Judge for Trial of NDPS Cases-cum- I-Additional Sessions Judge, Warangal.

N.D.P.S. SESSIONS CASE NO.81 OF 2006

(Cr.No.105/2005 of PS Shayampet)

1.Name and description of the :The State of A.P. rep. by the Sub- complainantInspector of Police, PS Regonda.

2.Name and description of the : Thota Ravi, s/o Rajakomaraiah, accusedAged: 35 years, Munnurukapu, Occu: Agriculture, R/o Koppula.

3.Offence charged:Sec.8(b) r/w 20 of Narcotic Drugs and Psychotropic Substances Act.

4.Plea of the accused:Pleaded not guilty

5.Finding of the Court:Found not guilty

6.Conviction, sentence or acquittal:The accused is found not guilty for contravention of Section 8(b) of NDPS Act punishable under Section 20(b)(i) of NDPS Act, and accordingly, he is acquitted for the same under Section 235(1) of Cr.PC. His bail bonds, if any, shall stand cancelled. MO1 shall be destroyed on expiry of appeal time.

7.Name of the Counsel for the :Addl. P.P. prosecution

8.Name of the counsel for accused:Sri B.Venkatram, Advocate

This case coming on 20.6.2013 for hearing before me in the presence of

Additional Public Prosecutor for the State/complainant and of Sri

B.Venkatram, Advocate for the accused and having stood over for consideration till this day, the Court delivered the following:

:: J U D G M E N T ::

1.The State represented by the Sub-Inspector of Police, PS Regonda, filed this case against the accused alleging that he has contravened the provisions of

S.C.No.81 of 20062

Section 8(b) of Narcotic Drugs and Psychotropic Substances Act (for short,

NDPS Act) punishable under Section 20(b)(i) of NDPS Act and the same was taken on file on same section of law.

2.The brief facts that are necessary for disposal of prosecution case may be stated as follows:

i)That on 21.12.2005 PW1 received reliable information about cultivation of ganja by some farmers of Koppula village, on that he along with his staff, photographer and panch witnesses proceeded to that village, found ganja cultivation in the land in Sy.No.86/A belonging to the accused, in all there were 4000 ganja plants, samples were lifted, panchanama was conducted. On the report lodged by PW1, this case in Cr.No.105/2005 was registered. At the request of PW1, MRO Shayampet visited the scene of offence, destroyed the existing ganja plants, issued destruction certificate. The Chemical Examiner, who examined the sample opined that the sample contains ganja. In the course of investigation, the accused was arrested on 19.1.2006. Investigation discloses that the accused has contravened the provisions of Section 8(b) punishable under Section 20(b)(i) of NDPS Act.

3.That on appearance of the accused, copies of relevant papers, as required under Section 207 of Cr.PC were furnished to him. Upon hearing and on perusal of record, a charge for the offence under Section 8(b) r/w Sec.20(b)(i) of NDPS Act was framed against the accused, read over and explained to him and he denied the said charge and claims to be tried.

4.During the trial, to bring home the guilt of the accused, on behalf of the prosecution in all examined PWs 1 to 7 and Exs-P1 to P8 and MO1 are marked and reported closure of prosecution evidence.

5.There upon, the accused is examined under Section 313 of Cr.PC with regard to incriminating evidence found against him, he denied the said evidence and reported that he has no defence evidence.

S.C.No.81 of 20063

6.Heard on both sides.

7.Now, the points that arise for consideration are:

I ) whether the prosecution is able to establish that the accused is the possessor of the land in Sy.No.86/A of Koppula village?

II ) Whether the accused cultivated ganja in the said land in Sy.No.86/A during the period 2005-2006 and contravened Section 8(b) of NDPS Act punishable under Section 20(b)(i) of NDPS Act, 1985, as alleged

beyond any reasonable doubt?

8.POINT NOs. I AND II:For the sake of convenience and to avoid repetition, both the points are settled together as under.

9.Precisely the prosecution has relied on the following evidence:

i)PW1 is the SI of Police, conducted raid.

ii)PWs 2 and 3 are the eye witnesses to the incident.

iii)PW4 is the photographer.

iv)PW5 is the Village Secretary and panch witness for scene of offence, seizure and destroyal and also issued Ex-P6/pahani.

v)PW6 is the then Head Constable, registered this case, whereas,

PW7 is the Investigation Officer.

10.PW1 has testified that on 21.12.2005 on reliable information, he along with his staff, Panchayat Secretary and MRO Shayampet, proceeded to the land in

Sy.No.86/R of Koppula village, it was identified by PW6 as that of accused, there was cotton crop in existence mixed with ganja plants, in all four thousand ganja plants were found, scene of offence panchanama was conducted as in Ex-P1, all the ganja plants were destroyed under Ex-P2/panchanama, scene of offence was photographed as in Ex-P3. MO1 is one such sample. In the cross-

S.C.No.81 of 20064 examination, this witness stated that there is no mention in the panchanama about the extent of the land in Sy.No.86/R and at the time of inspection neither the accused nor the neighbours were present and he did not mention about the owners of surrounding lands in the panchanama.

11.PWs 2 and 3 are the independent eye witnesses, resident of Koppula village, both the witnesses did not support the case of prosecution. Though, they were subjected to grueling cross-examination, nothing is elicited in favour of prosecution.

12.PW4 is the photographer, who obtained Ex-P3/photographs at the instance of police with regard to panchanama and destruction process.

13.PW5-K.Venu is the then Village Secretary, he is star witness for prosecution, he is cited and examined for identification of the land of the accused, he is a panch witness for seizure panchanama and destruction panchanama, also issued Ex-P6/pahani. His evidence is to the effect that in

December, 2005, at the request of police, he accompanied the police to the land of the accused along with LW9-Md.Ibrahim, the then MRO Shayampet, there were about 600 ganja plants, panchanama was conducted, all the ganja plants were up rooted, thrown as heap and burnt away. This witness stated that since, it was not convenient, the panchanama for seizure of ganja plants and panchanama for destruction as in Ex-P1 and Ex-P2 were only recorded in the

Gram Panchayat Office, his signatures were obtained on some slips, police also lifted samples, but when it was kept in the covers, he did not observe the same.

In the cross-examination, this witness stated that the neighbours who were present near the land came at the request of officials, but neither the police officials nor the MRO enquired with the neighbours as to how the name of the accused is recorded as share-holder to the extent mentioned against his name and he did not witness as to what was kept in the covers, but his signatures were obtained on some slips and he cannot identify all the persons of the village, where he worked as Village Secretary.

S.C.No.81 of 20065

14.PW6 is the then Head Constable, issued FIR as in Ex-P7, based on the report of PW1.

15.PW7 is the then SI of Police, Regonda. His evidence is to the effect that he received CD file from PW6, gave a requisition to MRO to destroy the ganja plants. Ex-P2 is the destruction panchanama. Ex-P7 is the destroyal certificate.

He has collected Ex-P6 from PW5. He also collected analysis report as in ex-P8 stating that the sample contains ganja and he affected the arrest of the accused on 19.1.2006. In the cross-examination, this witness stated that the samples were sent by him, but they were lifted by PW1 and he cannot say whether the sample contains branches or not and as per the analysis report the un-expended portion of sample was sent to the police, but it was not deposited before the

Court. PW7 further stated that he did not collect any document nor examined the pattedar, whose name is reflected in column No.12 of Ex-P6.

16.In Section 8(b) of NDPS Act cultivation of ganja or cannabis plant is prohibited and Section 20(b)(i) of the said Act, such cultivation of ganja plants is made punishable with imprisonment and fine.

17.In order to prove the guilt of the accused, it must be established by the prosecution that the accused has cultivated this prohibited plant. There must be some supporting evidence to prove that the accused cultivated ganja plants and it is not enough that few ganja plants were uprooted and they were burnt in the fields of the accused.

18.In the present case, the prosecution has relied on the evidence of PWs 2, 3 and 5 to establish the identity of the accused and to locate the land. Among them, PWs 2 and 3 turned hostile and they did not support the case of prosecution. PW5 is the then VAO, he is panch witness for Ex-P1 and Ex-P2 and he issued Ex-P6/pahani. As per his oral evidence, Ex-P1 and Ex-P2 were conducted in the Gram Panchayat Office and he did not witness the exact lifting

S.C.No.81 of 20066 of samples, but his signatures were obtained on the covers, wherein the samples were inserted.

19.On a copious reading of Ex-P1 and Ex-P2 and the evidence of PW1, Ex-

P1 and Ex-P2 were conducted at the scene of offence, whereas, PW7 has stated that he gave requisition to MRO for destruction of existing ganja plants, but he did not witness that process. Thus, the oral evidence of PW5 is contracting the testimony of PW1 and the contents of Ex-P1 and Ex-P2 as to the manner of lifting samples, place of conducting Ex-P1 and Ex-P2/panchanamas. As per Ex-

P6/attested copy of pahani, the total extent of the land in Sy.No.86/__ is Ac.2-01 gunta, the name of one Thota Komraiah is recorded as pattedar, whereas, the name of the accused is recorded as possessor to the extent of Ac.1-01 gunta as share-holder. In column No.21 of Ex-P6, it is mentioned that cotton and ganja. It is pertinent to note that column Nos.21 to 23, the total extent of the land of Ac.2- 01 gunta is mentioned.

20.It is the case of prosecution that the accused is concerned only with

Ac.1-01 gunta of land out of Ac.2-01 gunta. But the recitals in Ex-P6 would establish that in an total extent of Ac.2-01 gunta, cotton and ganja were cultivated. Thus, by any stretch of imagination, it cannot be said that the accused alone is responsible for the alleged cultivation of ganja in the total extent of Ac.2-01 gunta in Sy.No.86/___.

21.In a prosecution for contravention of Section 8(b) of NDPS Act, the question is whether the accused cultivated the ganja in an area of land within in his exclusive possession, the prosecution has to prove with convincing evidence that the said land has been identified by somebody.

22.In the present case, PWs 2 and 3 turned hostile. PW5 has testified that with the help of neighbours, the land was identified and in all four thousand ganja plants were found and he has issued Ex-P6/pahani. But, according to pahani, though the name of the accused is recorded as possessor to the extent of

Ac.1-01 gunta only, the cultivation of ganja was found in a total extent of Ac.2-01

S.C.No.81 of 20067 gunta. The Investigation Officer has not prepared any plan or map to specify that the cultivation of ganja was only lying in the portion of the land of the accused in

Sy.No.86/__. In other words, the prosecution has failed to establish the crucial aspect in this case showing that the accused was found in exclusive possession of the land in Sy.No.86/__ admeasuring Ac.2-01 gunta and that he is responsible for cultivation of ganja in the entire land. It is incumbent on the prosecution to prove this fact beyond any doubt, but, no such evidence is available on record. It is pertinent to note that the consequences of be falling the accused are disastrous and it is for the prosecution to adduce best evidence in the matter of proving the case beyond reasonable doubt. Unfortunately, the evidence on record is not convincing and acceptable. On going through the evidence discussed above in my humble opinion it is not safe to hold that the accused is alone responsible for questioned cultivation of ganja.

23.The fundamental principle of criminal jurisprudence is that every person is presumed to be innocent unless he is proved to be guilty. Considered as a whole, the case of the prosecution may be true, but there is a long gap in between “may be true” and “must be true”, the entire gap has to be filled-in by the prosecution with legally acceptable and convincing evidence. But, in the case on hand, such gap is not filled-in by the prosecution and a reasonable doubt is created in the case of prosecution about the accused cultivating the land where the questioned ganja plants were found. Therefore, in my considered opinion, the accused is entitled for benefit of reasonable doubt.

24.For the aforesaid reasons and conclusions, I am of the considered opinion that the prosecution has miserably failed to establish the guilt of the accused for contravention of Section 8(b) of NDPS Act punishable under Section 20(b)(i) of

NDPS Act, as alleged beyond reasonable doubt.

The point Nos. I and II are accordingly answered against the

prosecution and in favour of the accused holding that the prosecution has

S.C.No.81 of 20068

miserably failed to establish that the accused has contravened the

provisions of Section 8(b) of NDPS Act.

25.IN THE RESULT, I find the accused not guilty for contravention of Section 8(b) of NDPS Act punishable under Section 20(b)(i) of NDPS Act, and accordingly, he is acquitted for the same under Section 235(1) of Cr.PC. His bail bonds, if any, shall stand cancelled. MO1 shall be destroyed on expiry of appeal time.

(Dictated to the Personal Assistant, after his transcription, corrected and

pronounced by me in the Open Court, on this the 26th day of June, 2013).

SPECIAL SESSIONS JUDGE FOR NDPS CASES,

WARANGAL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

PW1:S.V.Raghavender Rao/de-facto complainant/ - None - the then SI of Police, Shayampet. PW2:Kanakam Raghu/eye witness PW3:K. Venkatamallu/eye witness PW4:S. Raja Bhadraiah/photographer PW5:K. Venu/Village Secretary/panch witness PW6:P. Pochalu/the then Head Constable PW7:M. Bharath Kumar/Investigation Officer

EXHIBITS MARKED

FOR PROSECUTION:

Ex-P1 is the scene of offence panchanama. Ex-P2 is the destruction panchanama. Ex-P3 are the photographs along with negatives. Ex-P4 is the 161 Cr.PC statement of PW2. Ex-P5 is the 161 Cr.PC statement of PW3. Ex-P6 is the attested copy of pahani. Ex-P7 is the FIR. Ex-P8 is the analysis report.

FOR DEFENCE:

- Nil -

MATERIAL OBJECTS MARKED

MO1 is the sample.

SPECIAL SESSIONS JUDGE FOR NDPS CASES,

WARANGAL.

IN THE COURT OF THE SPECIAL SESSIONS JUDGE FOR TRIAL OF

NDPS CASES (I-ADDITIONAL SESSIONS JUDGE) WARANGAL

Wednesday, this the 26th day of June, 2013

PRESENT:A.Venkateswara Reddy, Special Sessions Judge for Trial of NDPS Cases-cum- I-Additional Sessions Judge, Warangal.

N.D.P.S. SESSIONS CASE NO.13 OF 2007

(COR No.1282/2001-2002 of Prohibition and Excise Station, Warangal)

1.Name and description of the :The State of A.P. rep. by the complainantProhibition and Excise Inspector, Station Kazipet.

2.Name and description of the : Pindi Sammaiah, s/o Narsaiah, accusedAged: 40 years, Golla, Occu: Agriculture, R/o Pulukurthy, Man: Athmakur.

3.Offence charged:Sec.8(b) r/w 20 of Narcotic Drugs and Psychotropic Substances Act.

4.Plea of the accused:Pleaded not guilty

5.Finding of the Court:Found not guilty

6.Conviction, sentence or acquittal:The accused is found not guilty for contravention of Section 8(b) of NDPS Act punishable under Section 20(b)(i) of NDPS Act, and accordingly, he is acquitted for the same under Section 235(1) of Cr.PC. His bail bonds, if any, shall stand cancelled. MO1 shall be destroyed on expiry of appeal time.

7.Name of the Counsel for the :Addl. P.P. prosecution

8.Name of the counsel for accused:Sri P.Narayana Reddy, Advocate

This case coming on 24.6.2013 for hearing before me in the presence of

Additional Public Prosecutor for the State/complainant and of Sri P.Narayana

Reddy, Advocate for the accused and having stood over for consideration till this day, the Court delivered the following:

:: J U D G M E N T ::

S.C.No.13 of 20072

1.The State represented by the Prohibition and Excise Inspector, Kazipet, filed this case against the accused alleging that he has contravened the provisions of Section 8(b) of Narcotic Drugs and Psychotropic Substances Act (for short, NDPS Act) punishable under Section 20(b)(i) of NDPS Act and the same was taken on file on same section of law.

2.The brief facts that are necessary for disposal of prosecution case may be stated as follows:

i)That on 8.1.2002 on reliable information about cultivation of ganja in the outskirts of Pulukurthy village, PW3 and LW3-K.Vidyasagar Rao along with panch witnesses proceeded to that village, inspected the land in Sy.No.472 belonging to the accused, found 2435 ganja plants, samples were lifted, all the ganja plants were up rooted and destroyed under cover of panchanama. On returning to the Excise Station, PW3 registered a suo-motu case and issued

COR, collected the documents, affected arrest of the accused on 9.5.2002.

Thereafter, on the point of jurisdiction, transmitted the case to Excise Station,

Kazipet. PW5 verified the investigation and filed charge sheet. Investigation discloses that the accused has contravened the provisions of Section 8(b) punishable under Section 20(b)(i) of NDPS Act.

3.That on appearance of the accused, copies of relevant papers, as required under Section 207 of Cr.PC were furnished to him. Upon hearing and on perusal of record, a charge for the offence under Section 8(b) r/w Sec.20(b)(i) of NDPS Act was framed against the accused, read over and explained to him and he denied the said charge and claims to be tried.

4.During the trial, to bring home the guilt of the accused, on behalf of the prosecution in all examined PWs 1 to 4 and Exs-P1 to P7 and MO1 are marked and reported closure of prosecution evidence.

S.C.No.13 of 20073

5.There upon, the accused is examined under Section 313 of Cr.PC with regard to incriminating evidence found against him, he denied the said evidence and reported that he has no defence evidence.

6.Heard on both sides.

7.Now, the points that arise for consideration are:

I ) whether the prosecution is able to establish that the accused is the possessor of the land in Sy.No.427 of Pulukurthy village?

II ) Whether the accused cultivated ganja in the said land in Sy.No.427 during the period 2001-2002 and contravened Section 8(b) of NDPS Act punishable under Section 20(b)(i) of NDPS Act, 1985, as alleged

beyond any reasonable doubt?

8.POINT NOs. I AND II:For the sake of convenience and to avoid repetition, both the points are settled together as under.

9.Precisely the prosecution has relied on the following evidence:

i)PWs 1 and 2 are the panch witnesses for Ex-

P3/panchanama.

ii)PW3 is the Officer, conducted raid, registered this case, collected documents, affected arrest of the accused.

iii)PW4 is the Investigation Officer, verified the investigation and filed charge sheet.

10.PWs 1 and 2 have testified that about 12 years ago, the Excise Officials have obtained their signatures on some papers, but they did not know the contents of those documents. Though, these witnesses are cross-examined at length, nothing is elicited in favour of the prosecution to hold that these witnesses were deposed in favour of accused.

S.C.No.13 of 20074

11.PW3-M.Shekar Reddy has testified that he along with LW3-K.Vidyasagar

Rao and other staff inspected the land in Sy.No.472 on 8.1.2002, found in all 2435 ganja plants, they were up rooted, samples were lifted. MO1 is one such sample. All the ganja plants were destroyed under cover of Ex-P3/panchanama, a suo-motu case was registered by him. Ex-P4 is the COR. Samples were sent for analysis, affected arrest of the accused, collected documents, transferred CD file to PW4. In the cross-examination, this witness stated that he did not enquire any neighbouring farmers of the land in Sy.No.472. The accused only identified the said land of half acre out of 12 acres. It is also admitted by him that the total extent of the land in Sy.No.427 is Ac.19-12 guntas. Sample was kept in the police station till the date of giving his evidence. It is also admitted that in column

Nos.21 to 23 in Ex-P7/pahani with regard to details of crops kept blank. It is only mentioned in Ex-P3 that in an extent of one acre, ganja was found out of 19 acres, whereas, the possession of the accused is shown in respect of two acres of land only out of Ac.19-12 guntas.

12.PW4 has testified that he received CD file on 17.5.2006, verified the investigation and filed charge sheet. But, he did not visit the scene of offence and he has not examined any witnesses. He admitted that in Ex-P7, the column

Nos.21 to 23 with regard to details of crops is not mentioned.

13.In Section 8(b) of NDPS Act cultivation of ganja or cannabis plant is prohibited and Section 20(b)(i) of the said Act, such cultivation of ganja plants is made punishable with imprisonment and fine.

14.In order to prove the guilt of the accused, it must be established by the prosecution that the accused has cultivated this prohibited plant. There must be some supporting evidence to prove that the accused cultivated ganja plants and it is not enough that few ganja plants were uprooted and they were burnt in the fields of the accused.

S.C.No.13 of 20075

15.On a copious reading of the evidence discussed above, the prosecution has relied on the evidence of PWs 1 to 3 and the recitals in Ex-P3/panchanama and Ex-P7/pahani to establish the identity of the accused and to locate the land in question. Both the panch witnesses i.e. PWs 1 and 2 turned hostile, they did not support the case of prosecution. Ex-P7/pahani is obtained from VAO, but such officer neither cited nor examined by the prosecution.

16.As per the oral evidence of PW3, the total extent of the land in Sy.No.472 is Ac.19-12 guntas and the accused was present and identified half acre of land out of 12 acres. If really, the accused was present at the time of inspection or panchanama, what prevented PW3 or his colleague from affecting arrest of the accused on 8.1.2002 is not explained. As per the record, the arrest of the accused is shown as 9.5.2002. The signature of the accused is also not obtained on Ex-P3/panchanama. These are two strong circumstances to disbelieve the evidence of PW3 that the accused was present and identified half acre of land out of Ac.19-12 guntas in Sy.No.472.

17.As per Ex-P3/panchanama, it is mentioned that in the entire extent of land here and there in scattered position, there were in all 2435 ganja plants, the presence of the accused is also not mentioned in Ex-P3. Therefore, I am not inclined to believe the evidence of PW3 that the accused alone was present, identified that half acre of land, wherein 2435 ganja plants were in existence belonging to him. The process of destruction of ganja plants is also not photographed.

18.Ex-P7 is the pahani. The name of one P.Rathnaiah is recorded as pattedar to the total extent of Ac.19-12 guntas, whereas, the name of the accused is recorded as possessor for an extent of two acres without specifying the crops details in column Nos.21 to 23. Thus, even if the document i.e. Ex-P7 is to be believed as correct, in the absence of recording the details of crops, the accused cannot be held responsible for the alleged cultivation of questioned ganja in an extent of half acre, as stated by PW3. This half acre of land is neither

S.C.No.13 of 20076 demarcated nor any plan is prepared, the other cultivators in the remaining extent of the land are neither cited nor examined by the prosecution. The pattedar is also not examined, the possession of the accused in respect of two acres of land or Ac.0-21 guntas of land, wherein, the questioned ganja plants were found is not established beyond any reasonable doubts. The total extent of the land in Sy.No.472 is Ac.19-12 guntas. Even, if the evidence of PW3 is believed, it cannot be said that these were result of the cultivation by the accused, they may have been sprouted in the earth by natural process and the accused or other possessors in the remaining land must not be diligent in destroying the plants.

19.In a case between Alakh Ram Vs. State of U.P., reported in 2004(1) ALD (Crl.) 462 (SC), at Para 6, the Hon’ble Apex Court held that “there must be

supporting evidence to prove that the accused cultivated ganja

plants and it is not enough that few plants were found in the property

of the accused. It is quite reasonable to assume that sometimes the

plants may sprout up, if seeds happened to be embedded in earth

due to natural process. If plants are sprouted by natural growth, it

cannot be said that it amounts to cultivation.”

20.In a prosecution for contravention of Section 8(b) of NDPS Act, the question is whether the accused cultivated the ganja in an area of land lying in his exclusive possession.

21.Consequences for contravention of Section 8(b) of NDPS Act are disastrous, he has to be punished severely, therefore, we expect a serious exercise on the part of prosecution to adduce best evidence in the matter of proving the case beyond all reasonable doubts. Unfortunately, the prosecution has not done so. On going through the evidence, I am not convinced and satisfied that the accused alone is responsible for questioned cultivation of ganja and it is found in his exclusive possession.

S.C.No.13 of 20077

22.The fundamental principle of criminal jurisprudence is that every person is presumed to be innocent unless he is proved to be guilty. Considered as a whole, the case of the prosecution may be true, but there is a long gap in between “may be true” and “must be true”, the entire gap has to be filled-in by the prosecution with legally acceptable and convincing evidence. But, in the case on hand, such gap is not filled-in by the prosecution and a reasonable doubt is created in the case of prosecution about the accused cultivating the land where the questioned ganja plants were found. Therefore, in my considered opinion, the accused is entitled for benefit of reasonable doubt. The principle laid by the Hon’ble Apex Court in the above decision squarely applies to the facts of the present case.

23.For the aforesaid reasons and conclusions, I am of the considered opinion that the prosecution has miserably failed to establish the guilt of the accused for contravention of Section 8(b) of NDPS Act punishable under Section 20(b)(i) of

NDPS Act, as alleged beyond reasonable doubt.

The point Nos. I and II are accordingly answered against the

prosecution and in favour of the accused holding that the prosecution has

miserably failed to establish that the accused has contravened the

provisions of Section 8(b) of NDPS Act.

24.IN THE RESULT, I find the accused not guilty for contravention of Section 8(b) of NDPS Act punishable under Section 20(b)(i) of NDPS Act, and accordingly, he is acquitted for the same under Section 235(1) of Cr.PC. His bail bonds, if any, shall stand cancelled. MO1 shall be destroyed on expiry of appeal time.

(Dictated to the Personal Assistant, after his transcription, corrected and

pronounced by me in the Open Court, on this the 26th day of June, 2013).

SPECIAL SESSIONS JUDGE FOR NDPS CASES,

WARANGAL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

S.C.No.13 of 20078

FOR PROSECUTION: FOR DEFENCE:

PW1:P. Sahoder/panch witness - None - PW2:D.Ramchandram/village servant/panch witness PW3:M. Shekar Reddy/first Investigation Officer PW4:D. Srinivas/Investigation Officer

EXHIBITS MARKED

FOR PROSECUTION:

Ex-P1 is the signature of PW1 on Ex-P3. Ex-P2 is the signature of PW2 on Ex-P3. Ex-P3 is the panchanama. Ex-P4 is the COR. Ex-P5 is the letter of advice. Ex-P6 is the analysis report. Ex-P7 is the pahani.

FOR DEFENCE:

- Nil -

MATERIAL OBJECTS MARKED

MO1 is the sample.

SPECIAL SESSIONS JUDGE FOR NDPS CASES,

WARANGAL.

IN THE COURT OF THE SPECIAL SESSIONS JUDGE FOR TRIAL OF

NDPS CASES (I-ADDITIONAL SESSIONS JUDGE) WARANGAL

Wednesday, this the 26th day of June, 2013

PRESENT:A.Venkateswara Reddy, Special Sessions Judge for Trial of NDPS Cases-cum- I-Additional Sessions Judge, Warangal.

N.D.P.S. SESSIONS CASE NO.5 OF 2008

(Cr.No.100/2007 of PS Chityal)

1.Name and description of the :The State of A.P. rep. by the Circle complainantInspector of Police, Chityal.

2.Name and description of the : Sagarla Rajaiah, s/o Komuraiah, accusedAged: 60 years, Golla, Occu: Agriculture, R/o Kalikotapally H/o Garmillapally.

3.Offence charged:Sec.8(b) r/w 20 of Narcotic Drugs and Psychotropic Substances Act.

4.Plea of the accused:Pleaded not guilty

5.Finding of the Court:Found not guilty

6.Conviction, sentence or acquittal:The accused is found not guilty for contravention of Section 8(b) of NDPS Act punishable under Section 20(b)(i) of NDPS Act, and accordingly, he is acquitted for the same under Section 235(1) of Cr.PC. His bail bonds, if any, shall stand cancelled. MO1 shall be destroyed on expiry of appeal time.

7.Name of the Counsel for the :Addl. P.P. prosecution

8.Name of the counsel for accused:Sri P.Ravinder, Advocate

This case coming on 21.6.2013 for hearing before me in the presence of

Additional Public Prosecutor for the State/complainant and of Sri P.Ravinder,

Advocate for the accused and having stood over for consideration till this day, the

Court delivered the following:

:: J U D G M E N T ::

1.The State represented by the Circle Inspector of Police, Chityal, filed this case against the accused alleging that he has contravened the provisions of

S.C.No.5 of 20082

Section 8(b) of Narcotic Drugs and Psychotropic Substances Act (for short,

NDPS Act) punishable under Section 20(b)(i) of NDPS Act and the same was taken on file on same section of law.

2.The brief facts that are necessary for disposal of prosecution case may be stated as follows:

i)That on 26.11.2007 on reliable information about illegal cultivation of ganja at Kalikotapally village, PW2 and his staff along with panch witnesses namely

P.Kumaraswamy and S.Rajamogili (LWs 7 and 8) and the VRO, PW1, proceeded to the land in Sy.No.153/A belonging to the accused. This land was identified by PW1, on inspection, they found 215 ganja plants in one acre of land, all the ganja plants were up rooted, samples were lifted in polythene covers under cover of panchanama and the ganja plants were destroyed. On the report lodged by PW1, this case vide Cr.No.100/2007 was registered by LW11-HC 454 and the investigation was taken over by PW4, who examined the witnesses, referred the samples for analysis, collected pahani and also affected the arrest of the accused on 29.11.2007. Investigation discloses that the accused has contravened the provisions of Section 8(b) punishable under Section 20(b)(i) of

NDPS Act.

3.That on appearance of the accused, copies of relevant papers, as required under Section 207 of Cr.PC were furnished to him. Upon hearing and on perusal of record, a charge for the offence under Section 8(b) r/w Sec.20(b)(i) of NDPS Act was framed against the accused, read over and explained to him and he denied the said charge and claims to be tried.

4.During the trial, to bring home the guilt of the accused, on behalf of the prosecution in all examined PWs 1 to 4 and Exs-P1 to P7 and MO1 are marked and reported closure of prosecution evidence.

S.C.No.5 of 20083

5.There upon, the accused is examined under Section 313 of Cr.PC with regard to incriminating evidence found against him, he denied the said evidence and reported that he has no defence evidence.

6.Heard on both sides.

7.Now, the points that arise for consideration are:

I ) whether the prosecution is able to establish that the accused is the possessor of the land in Sy.No.153/A of Kalikotapally village?

II ) Whether the accused cultivated ganja in the said land in Sy.No.153/A during the period 2007-2008 and contravened Section 8(b) of NDPS Act punishable under Section 20(b)(i) of NDPS Act, 1985, as alleged

beyond any reasonable doubt?

8.POINT NOs. I AND II:For the sake of convenience and to avoid repetition, both the points are settled together as under.

9.Precisely the prosecution has relied on the following evidence:

i)PW1 is the VRO of the village, he is also cited as panch witness for scene of offence and destruction panchanama, he issued Ex-

P3/pahani.

ii)PW3 is the Tahsildar, he gave destruction orders and attested on pahani.

iii)PW2 is the SI of Police, conducted raid, whereas, PW4 is the

Investigation Officer.

10.PW2 is the de-facto complainant and SI of Police, conducted raid. His evidence is to the effect that on 26.11.2007 on reliable information, he along with his staff proceeded to Garimillapally village and they found 215 ganja plants mixed with chilly and cotton crops in the land in Sy.No.153/A. On enquiry, it was revealed that the said land belongs to the accused. Accordingly, under cover of

S.C.No.5 of 20084

Ex-P1/panchanama, samples were lifted, ganja plants were destroyed. He gave a report as in Ex-P5. In the cross-examination, this witness has stated that he secured the mediators after reaching to the said land, he did not examine the neighbours, he has not specified the description of the seal affixed to the samples in the panchanama.

11.PW1 is the VRO of the village, he is also panch witness for the scene of offence panchanama/Ex-P1 and destruction panchanama and it is, he, who issued Ex-P3/pahani. His evidence is to the effect that he accompanied PW2 and other officers, they found 215 ganja plants in the land in Sy.No.150/A, police removed those ganja plants under cover of Ex-P1/panchanama and destruction panchanama was also conducted, and he has issued Ex-P3/pahani. In the cross-examination, this witness stated that the accused is not pattedar of the land and in the pahani, it is shown as Ac.2-07 guntas, but they found crop only in an extent of one acre and he did not specify in the pahani as to who was cultivating the land and there is no record to show that the accused is cultivating the said land, which belongs to Shakillam Thirupathaiah. PW1 further stated that he has neither collected nor handed over any pattedar passbook of the original owner Thirupathaiah and the land was not measured at the time of inspection.

12.PW3/Tahsildar supported the evidence of PW1 and testified that he received requisition from SHO, Chityal, accordingly, he has issued permission for destroyal and attested on Ex-P3/pahani. His evidence would establish that he did not go to the scene of offence, he has simply received requisition, issued destroyal certificate and attested on Ex-P3. This witness further stated that he cannot say whether in the original record, it is mentioned that there was ganja plantation in this land and in that in Ex-P3, the extent of the land is mentioned as

Ac.2-07 guntas, but the total extent is Ac.3-07 guntas in that survey number.

13.PW4 is the Investigation Officer, his evidence is to the effect that he received CD file, verified the investigation, obtained chemical analysis report, affected the arrest of the accused on 29.11.2007 and filed charge sheet. In the

S.C.No.5 of 20085 cross-examination, this witness stated that he did not examine the neighbours at the scene of offence and he did not examine the youth, who helped the officials in removing the ganja plants, the accused is not pattedar of the said land and he did not examine the pattedar, other cultivators and that PW2 has not submitted

GD extract about the reliable information before starting for raid.

14.In Section 8(b) of NDPS Act cultivation of ganja or cannabis plant is prohibited and Section 20(b)(i) of the said Act, such cultivation of ganja plants is made punishable with imprisonment and fine.

15.In order to prove the guilt of the accused, it must be established by the prosecution that the accused has cultivated this prohibited plant. There must be some supporting evidence to prove that the accused cultivated ganja plants and it is not enough that few ganja plants were uprooted and they were burnt in the fields of the accused.

16.The prosecution has relied on the testimony of PW1 and the recitals in Ex-

P3/pahani to establish the identity of the land. The accused is not pattedar, he has not specified as to who was cultivating the remaining land in that survey number and that there is no record to show that the accused is cultivating the said land, belonging to Thirupathaiah. As per Ex-P3/attested copy of pahani, the total extent of the land in Sy.No.153/A is Ac.3-07 guntas, whereas, the possession of the accused is shown only for an extent of Ac.2-07 guntas and in cultivation column only for an extent of one acre, it is shown as cotton and ganja.

There is no evidence on record about the number of sub-divisions in Sy.No.153, total extent of that survey number, precise boundaries of the land to one acre said to be in the exclusive possession of the accused out of Sy.No.153/A, wherein 215 ganja plants were found. The pattedar is not examined, in the remarks column of Ex-P3/pahani, it is mentioned as ganja is cultivated as mixed crop. There is no proof to show that the accused purchased either Ac.2-07 guntas or one acre of land from the pattedar Thirupathaiah.

S.C.No.5 of 20086

17.In a case between Alakh Ram Vs. State of U.P., reported in 2004(1) ALD (Crl.) 462 (SC), at Para 6, the Hon’ble Apex Court held that “there must be

supporting evidence to prove that the accused cultivated ganja

plants and it is not enough that few plants were found in the property

of the accused. It is quite reasonable to assume that sometimes the

plants may sprout up, if seeds happened to be embedded in earth

due to natural process. If plants are sprouted by natural growth, it

cannot be said that it amounts to cultivation.”

18.In a prosecution for contravention of Section 8(b) of NDPS Act, the question is whether the accused cultivated the ganja in an area of land lying in his exclusive possession.

19.Consequences for contravention of Section 8(b) of NDPS Act are disastrous, he has to be punished severely, therefore, we expect a serious exercise on the part of prosecution to adduce best evidence in the matter of proving the case beyond all reasonable doubts. Unfortunately, the prosecution has not done so. On going through the evidence, I am not convinced and satisfied that the accused alone is responsible for questioned cultivation of ganja and it is found in his exclusive possession.

20.The fundamental principle of criminal jurisprudence is that every person is presumed to be innocent unless he is proved to be guilty. Considered as a whole, the case of the prosecution may be true, but there is a long gap in between may be true and must be true, the entire gap has to be filled-in by the prosecution with legally acceptable and convincing evidence. But, in the case on hand, such gap is not filled-in by the prosecution and a reasonable doubt is created in the case of prosecution about the accused cultivating the land where the questioned ganja plants were found. Therefore, in my considered opinion, the accused is entitled for benefit of reasonable doubt. The principle laid by the

S.C.No.5 of 20087

Hon’ble Apex Court in the above decision squarely applies to the facts of the

present case.

21.For the aforesaid reasons and conclusions, I am of the considered opinion that the prosecution has miserably failed to establish the guilt of the accused for contravention of Section 8(b) of NDPS Act punishable under Section 20(b)(i) of

NDPS Act, as alleged beyond reasonable doubt.

The point Nos. I and II are accordingly answered against the

prosecution and in favour of the accused holding that the prosecution has

miserably failed to establish that the accused has contravened the

provisions of Section 8(b) of NDPS Act.

22.IN THE RESULT, I find the accused not guilty for contravention of Section 8(b) of NDPS Act punishable under Section 20(b)(i) of NDPS Act, and accordingly, he is acquitted for the same under Section 235(1) of Cr.PC. His bail bonds, if any, shall stand cancelled. MO1 shall be destroyed on expiry of appeal time.

(Dictated to the Personal Assistant, after his transcription, corrected and

pronounced by me in the Open Court, on this the 26th day of June, 2013).

SPECIAL SESSIONS JUDGE FOR NDPS CASES,

WARANGAL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

PW1:P.Surender/VRO/panch witness- None - PW2:S.Amrutha Reddy/de-facto complainant/SI PW3:P.Sammi Reddy/Tahsildar PW4:B.Kishan/Investigation Officer

EXHIBITS MARKED

FOR PROSECUTION:

Ex-P1 is the panchanama. Ex-P2 is the signature of PW1 on destruction panchanama. Ex-P3 is the pahani. Ex-P4 are the three photographs with negatives. Ex-P5 is the complaint. Ex-P6 is the destruction certificate. Ex-P7 is the chemical examiner’s report.

FOR DEFENCE:

S.C.No.5 of 20088 - Nil -

MATERIAL OBJECTS MARKED

MO1 is the sample.

SPECIAL SESSIONS JUDGE FOR NDPS CASES,

WARANGAL.

IN THE COURT OF THE SPECIAL SESSIONS JUDGE FOR TRIAL OF

NDPS CASES (I-ADDITIONAL SESSIONS JUDGE) WARANGAL

Wednesday, this the 26th day of June, 2013

PRESENT:A.Venkateswara Reddy, Special Sessions Judge for Trial of NDPS Cases-cum- I-Additional Sessions Judge, Warangal.

N.D.P.S. SESSIONS CASE NO.6 OF 2008

(Cr.No.101/2007 of PS Chityal)

1.Name and description of the :The State of A.P. rep. by the Circle complainantInspector of Police, Chityal.

2.Name and description of the : Budime Odelu, s/o Odelu, Aged: 55 accusedyears, Kurma, Occu: Agriculture, R/o Kalikotapally H/o Garmillapally.

3.Offence charged:Sec.8(b) r/w 20 of Narcotic Drugs and Psychotropic Substances Act.

4.Plea of the accused:Pleaded not guilty

5.Finding of the Court:Found not guilty

6.Conviction, sentence or acquittal:The accused is found not guilty for contravention of Section 8(b) of NDPS Act punishable under Section 20(b)(i) of NDPS Act, and accordingly, he is acquitted for the same under Section 235(1) of Cr.PC. His bail bonds, if any, shall stand cancelled. MO1 shall be destroyed on expiry of appeal time.

7.Name of the Counsel for the :Addl. P.P. prosecution

8.Name of the counsel for accused:Sri P.Ravinder, Advocate

This case coming on 21.6.2013 for hearing before me in the presence of

Additional Public Prosecutor for the State/complainant and of Sri P.Ravinder,

Advocate for the accused and having stood over for consideration till this day, the

Court delivered the following:

:: J U D G M E N T ::

1.The State represented by the Circle Inspector of Police, Chityal, filed this case against the accused alleging that he has contravened the provisions of

S.C.No.6 of 20082

Section 8(b) of Narcotic Drugs and Psychotropic Substances Act (for short,

NDPS Act) punishable under Section 20(b)(i) of NDPS Act and the same was taken on file on same section of law.

2.The brief facts that are necessary for disposal of prosecution case may be stated as follows:

i)That on 26.11.2007 on reliable information about illegal cultivation of ganja at Kalikotapally village, PW2 and his staff along with panch witnesses namely

P.Kumaraswamy and S.Rajamogili (LWs 7 and 8) and the VRO, PW1, proceeded to the land in Sy.No.45 belonging to the accused. This land was identified by PW1, on inspection, they found 60 ganja plants in one acre of land, all the ganja plants were up rooted, samples were lifted in polythene covers under cover of panchanama and the ganja plants were destroyed. On the report lodged by PW1, this case vide Cr.No.101/2007 was registered by LW11-HC 454 and the investigation was taken over by PW4, who examined the witnesses, referred the samples for analysis, collected pahani and also affected the arrest of the accused on 29.11.2007. Investigation discloses that the accused has contravened the provisions of Section 8(b) punishable under Section 20(b)(i) of

NDPS Act.

3.That on appearance of the accused, copies of relevant papers, as required under Section 207 of Cr.PC were furnished to him. Upon hearing and on perusal of record, a charge for the offence under Section 8(b) r/w Sec.20(b)(i) of NDPS Act was framed against the accused, read over and explained to him and he denied the said charge and claims to be tried.

4.During the trial, to bring home the guilt of the accused, on behalf of the prosecution in all examined PWs 1 to 4 and Exs-P1 to P7 and MO1 are marked and reported closure of prosecution evidence.

S.C.No.6 of 20083

5.There upon, the accused is examined under Section 313 of Cr.PC with regard to incriminating evidence found against him, he denied the said evidence and reported that he has no defence evidence.

6.Heard on both sides.

7.Now, the points that arise for consideration are:

I ) whether the prosecution is able to establish that the accused is the possessor of the land in Sy.No.45 of

Kalikotapally village?

II ) Whether the accused cultivated ganja in the said land in Sy.No.45 during the period 2007-2008 and contravened Section 8(b) of NDPS Act punishable under Section 20(b)(i) of NDPS Act, 1985, as alleged

beyond any reasonable doubt?

8.POINT NOs. I AND II:For the sake of convenience and to avoid repetition, both the points are settled together as under.

9.Precisely the prosecution has relied on the following evidence:

i)PW1 is the VRO of the village, he is also cited as panch witness for scene of offence and destruction panchanama, he issued Ex-

P3/pahani.

ii)PW3 is the Tahsildar, he gave destruction orders and attested on pahani.

iii)PW2 is the SI of Police, conducted raid, whereas, PW4 is the

Investigation Officer.

10.PW2 is the de-facto complainant and SI of Police, conducted raid. His evidence is to the effect that on 26.11.2007 on reliable information, he along with his staff proceeded to Garimillapally village and they found 60 ganja plants mixed with cotton crop in the land in Sy.No.45. On enquiry, it was revealed that the said land belongs to the accused. Accordingly, under cover of Ex-

S.C.No.6 of 20084

P1/panchanama, samples were lifted, ganja plants were destroyed. He gave a report as in Ex-P5. In the cross-examination, this witness has stated that he secured the mediators after reaching to the said land, he did not examine the neighbours, he has not specified the description of the seal affixed to the samples in the panchanama.

11.PW1 is the VRO of the village, he is also panch witness for the scene of offence panchanama/Ex-P1 and destruction panchanama and it is, he, who issued Ex-P3/pahani. His evidence is to the effect that he accompanied PW2 and other officers, they found 60 ganja plants in the land in Sy.No.45, police removed those ganja plants under cover of Ex-P1/panchanama and destruction panchanama was also conducted, and he has issued Ex-P3/pahani. In the cross-examination, this witness stated that the accused is not pattedar of the land and in the pahani, it is shown as Ac.2-07 guntas, but they found crop only in an extent of one acre and he did not specify in the pahani as to who was cultivating the land and there is no record to show that the accused is cultivating the said land, which belongs to Peddireddy Narsimha Reddy. PW1 further stated that he has neither collected nor handed over any pattedar passbook of the original owner Narsimha Reddy and the land was not measured at the time of inspection.

12.PW3/Tahsildar supported the evidence of PW1 and testified that he received requisition from SHO, Chityal, accordingly, he has issued permission for destroyal and attested on Ex-P3/pahani. His evidence would establish that he did not go to the scene of offence, he has simply received requisition, issued destroyal certificate and attested on Ex-P3. This witness further stated that he cannot say whether in the original record, it is mentioned that there was ganja plantation in this land and in that in Ex-P3, the extent of the land is mentioned as

Ac.0-30 guntas, but the total extent is Ac.2-32 guntas in that survey number.

13.PW4 is the Investigation Officer, his evidence is to the effect that he received CD file, verified the investigation, obtained chemical analysis report,

S.C.No.6 of 20085 affected the arrest of the accused on 29.11.2007 and filed charge sheet. In the cross-examination, this witness stated that he did not examine the neighbours at the scene of offence and he did not examine the youth, who helped the officials in removing the ganja plants, the accused is not pattedar of the said land and he did not examine the pattedar, other cultivators and that PW2 has not submitted

GD extract about the reliable information before starting for raid.

14.In Section 8(b) of NDPS Act cultivation of ganja or cannabis plant is prohibited and Section 20(b)(i) of the said Act, such cultivation of ganja plants is made punishable with imprisonment and fine.

15.In order to prove the guilt of the accused, it must be established by the prosecution that the accused has cultivated this prohibited plant. There must be some supporting evidence to prove that the accused cultivated ganja plants and it is not enough that few ganja plants were uprooted and they were burnt in the fields of the accused.

16.The prosecution has relied on the evidence of PWs 1 and 3 and the recitals in Ex-P3/pahani to establish the identity of the land. The total extent of land in Sy.No.45 is Ac.2-32 guntas and one Peddireddy Narsimha Reddy is shown as pattear, whereas, the name of the accused is recorded as possessor only to the extent of Ac.0-30 guntas as purchaser. But the sale deed is not filed, the pattedar is not examined. It is not explained by the prosecution that who are in possession of the remaining land in Sy.No.45, since the case of the accused is of total denial.

17.In a case between Alakh Ram Vs. State of U.P., reported in 2004(1) ALD (Crl.) 462 (SC), at Para 6, the Hon’ble Apex Court held that “there must be

supporting evidence to prove that the accused cultivated ganja

plants and it is not enough that few plants were found in the property

of the accused. It is quite reasonable to assume that sometimes the

plants may sprout up, if seeds happened to be embedded in earth

S.C.No.6 of 20086

due to natural process. If plants are sprouted by natural growth, it

cannot be said that it amounts to cultivation.”

18.In a prosecution for contravention of Section 8(b) of NDPS Act, the question is whether the accused cultivated the ganja in an area of land lying in his exclusive possession.

19.Consequences for contravention of Section 8(b) of NDPS Act are disastrous, he has to be punished severely, therefore, we expect a serious exercise on the part of prosecution to adduce best evidence in the matter of proving the case beyond all reasonable doubts. Unfortunately, the prosecution has not done so. On going through the evidence, I am not convinced and satisfied that the accused alone is responsible for questioned cultivation of ganja and it is found in his exclusive possession.

20.The fundamental principle of criminal jurisprudence is that every person is presumed to be innocent unless he is proved to be guilty. Considered as a whole, the case of the prosecution “may be true”, but there is a long gap in between “may be true” and “must be true”, the entire gap has to be filled-in by the prosecution with legally acceptable and convincing evidence. But, in the case on hand, such gap is not filled-in by the prosecution and a reasonable doubt is created in the case of prosecution about the accused cultivating the land where the questioned ganja plants were found. Therefore, in my considered opinion, the accused is entitled for benefit of reasonable doubt. The principle laid by the

Hon’ble Apex Court in the above decision squarely applies to the facts of the

present case.

21.For the aforesaid reasons and conclusions, I am of the considered opinion that the prosecution has miserably failed to establish the guilt of the accused for contravention of Section 8(b) of NDPS Act punishable under Section 20(b)(i) of

NDPS Act, as alleged beyond reasonable doubt.

S.C.No.6 of 20087

The point Nos. I and II are accordingly answered against the

prosecution and in favour of the accused holding that the prosecution has

miserably failed to establish that the accused has contravened the

provisions of Section 8(b) of NDPS Act.

22.IN THE RESULT, I find the accused not guilty for contravention of Section 8(b) of NDPS Act punishable under Section 20(b)(i) of NDPS Act, and accordingly, he is acquitted for the same under Section 235(1) of Cr.PC. His bail bonds, if any, shall stand cancelled. MO1 shall be destroyed on expiry of appeal time.

(Typed to my dictation, after correction, pronounced by me in the Open Court, on this the 26th day of June, 2013).

SPECIAL SESSIONS JUDGE FOR NDPS CASES,

WARANGAL.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

PW1:P.Surender/VRO/panch witness- None - PW2:S.Amrutha Reddy/de-facto complainant/SI PW3:P.Sammi Reddy/Tahsildar PW4:B.Kishan/Investigation Officer

EXHIBITS MARKED

FOR PROSECUTION:

Ex-P1 is the panchanama. Ex-P2 is the signature of PW1 on destruction panchanama. Ex-P3 is the pahani. Ex-P4 are the three photographs with negatives. Ex-P5 is the complaint. Ex-P6 is the destruction certificate. Ex-P7 is the chemical examiner’s report.

FOR DEFENCE:

- Nil -

MATERIAL OBJECTS MARKED

MO1 is the sample.

SPECIAL SESSIONS JUDGE FOR NDPS CASES,

WARANGAL.