I A.J.M.F.C., MARKAPUR 1 C.C.1264/2021
CALENDAR AND JUDGMENT
IN THE COURT OF THE I ADDL.JUDL. MAGISTRATE OF FIRST CLASS:
MARKAPUR
C.C. No. 1264 of 2021 In Crime No.30 of 2021 of Markapur Town Police Station
1)Offence :08.02.2021
2)Complaint :08.02.2021
3)Apprehensionof:08.02.2021 Accused
4)Commencement of Trial :23.11.2021
5)Close of Trial:12.01.2022
6)Judgment:14.02.2022
7)Complainant:The State, Inspector of Police, Markapur Circle.
8)Name of the Accused:1.Thangillapalli Nagendra Varma S/o.Late Raju, 30 Yers, Padmasali by caste, N/o.NGOs Colony, H.No.6-1-108/15-86, Mahabooba Bad Town and District, Telangana State, R/o.Uppu Guda of Hyderabad. 2.Thangillapalli Rama Mohan Chari S/o.Veera Chari, 32 Years, kamsali by caste, NGOs Colony, Mahabooba Bad Town and District, Telangana State.
9)Offence: 8(c), 20(b) of NDPS Act.
10)Plea of Accused:NOT GUILTY
11)Finding:A1 is found guilty A2 is not found guilty
12)Result:In the result, The Accused No.2 Rammohana Chari is found not guilty for the offence punishable U/sec.20(ii)(b) of the Narcotic Drugs and Psychotropic Substances Act and he is acquitted U/sec.248(1) Cr.PC. Accused No.1 Nagendra Varma found guilty for the offence punishable U/s.20(ii)(b) of the Narcotic Drugs and Psychotropic Substances Act and he is convicted U/Sec.248(2) Cr.PC and sentenced to rigorous imprisonment for a period of two years and to pay a fine of
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Rs.10000/ (Rupees ten thousand Only) for the offence U/s.20(ii)(b) of the Narcotic Drugs and Psychotropic Substances Act. In default of payment of fine, the Accused No.1 is sentenced to undergo simple imprisonment for a period of six months for the offence U/s.20(ii)(b) of the Narcotic Drugs and Psychotropic Substances Act. The remand period undergone by the accused No.1 from 07.02.2021 to 14.02.2022 shall be set off U/sec.428 of Cr.PC. MO.1 and MO2 shall be destroyed after expiry of appeal time. Office is directed to supply the copy of the judgment to Accused No.1 forthwith at free of cost. Office is further directed to prepare conviction warrants accordingly.
13)Explanation for delay:The case was taken on file on 30.09.2021 Trial commenced on 23.11.2021 and closed on 12.01.2022 and the Judgment was
pronounced on 14.02.2022. Hence, the delay.
Sd/Abdul Rahman Shaik, I Addl. Judicial Magistrate of First Class,
MARKAPUR.
Copy submitted to:
1.The Hon’ble I Addl. District and Sessions Judge, Prakasam District, Ongole.
2.The Hon’ble Secretary-cum-Senior Civil Judge, DLSA, Ongole.
Copy to:
2.The Asst. Public Prosecutor, IAJMFC Court, Markapur.
3.The Superintendent of Police, Prakasam District, Ongole.
I A.J.M.F.C., MARKAPUR 3 C.C.1264/2021
IN THE COURT OF THE I ADDL. JUDICIAL MAGISTRATE OF FIRST
CLASS: MARKAPUR
Present:- Sri ABDUL RAHMAN SHAIK, I Addl. Judicial Magistrate of First Class, Markapur
Monday, this the 14th day of February, 2022.
Calendar Case No.1264 of 2021 Between: The State: Rep by Inspector of Police, Markapur Circle. …Complainant
AND
A1.Thangillapalli Nagendra Varma S/o.Late Raju, 30 Yers, Padmasali by caste, N/o.NGOs Colony, H.No.6- 1-108/15-86, Mahabooba Bad Town and District, Telangana State, R/o.Uppu Guda of Hyderabad. A2.Thangillapalli Rama Mohan Chari S/o.Veera Chari, 32 Years, kamsali by caste, NGOs Colony, Mahabooba Bad Town and District, Telangana State.
…..Accused
Present: Kum B.Lakshmi Kumari, Sr.A.P.P. for the State/complainant. Sri S.M.Ali, Legal Aid counsel for the accused no.1 Smt E.Sarada, Advocate for accused no.2.
JUDGMENT
1.The Inspector of Police, Markapur Circle filed charge sheet against the
Accused no.1 and 2 in Cr.No.30/2021 for the offence under Sec.8(C), 20(b) of
N.D.P.S.Act.
2.The following allegations in brief of charge sheet:
i)LW1 T.Kishore Babu is the Sub Inspector of Police, Markapur Town PS and the complainant in this case. On 08.02.2021 at about 09:15 hours LW1 received credible information abut the possession and carrying of contraband
Ganja, then immediately he informed the same to his superiors and as per their instructions, LW1 secured the presence of mediators LW7 M.Kotaiah and
LW8 K.Santhaiah and along with staff LW2 Ch.V.Narayana, LW3 B.Anil Babu,
LW4 P.Kondaiah, LW5 G.Venkateswarlu left the police station and proceeded to the outskirts of Markapur Town, near Goddess Alluri Poleramma Temple,
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Tarlupadu Road at 09:45 hours and found the A1 who was standing there with a white coloured plastic bag and on seeing the police vehicle he tried to skulk away towards Tarlupadu road side, then the LW1 along with staff chased and caught hold of A1 at some distance and brought him before the mediators and in their presence they questioned A1 about his identity particulars, reason for his skulk away on seeing them and contents of plastic bag, then voluntarily confessed his identity particulars as A1 and also confessed that after demise of his father he addicted for bad vices, used to pick up quarrel with his mother and younger brother and due to that they did not give money for his expenses, then he maintained cell shop in his village for some time, working as Airtel Executive for some time at Hyderabad and maintained a hotel at his village, as the money which was earned by him through job was not sufficient for his jalsas, he committed theft of laptop and money at his job place and also cheated someone for money and in that way he was arrested police in theft and cheating cases in Hyderabad and he was stayed at Chenchalaguda and Cherlopalli jails for some time, after that as he did not get any job due to criminal cases and his members also not support him in financial, he decided to do any illegal business for earning money in easy way and he used to purchase Ganja at Railway Stations, Bus Stands in
Warangal and Khammam areas from unknown saints and used to sell the same to unknown persons with higher rate and doing jalsas, in that way about 5 days prior to occurrence i.e., 4.2.2021 he went to Khajipet Railway Station, purchased 900 Grams of Ganja from the unknown saint and kept the same in white plastic gunny bag and in order to sell the same to the students with high rate at Vijayawada, acquainted with his friend A2 and both came to
Vijayawada and moved for two days at Railway Stations, Bus Stands at
Vijayawada for selling the Ganja, but in vain, as Ganja did not sell out at
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Vijayawada on 8.2.2021 early morning A1 and A2 left from Vijayawada, reached to outskirts of Markapur near Goddess Alluri Poleramma Temple, in order to sell the Ganja the A2 went in to the Town for enquiry to sell the same to the students and innocent public and A1 is waiting at the scene of offence for arrival of A2, meantime A1 observed the arrival of police, tried to skulk away and meanwhile police caught hold of him red handedly with ganja. Then
LW1 opened and examined the white colour plastic bag and found in the possession of A1 in the presence of mediators LW7 and 8 and found dried
Ganja with leaves, seeds and flowering tops, LW1 weighed the Ganja by using digital Weighing Scale brought by Lw6 and found it to be 900 grams of Ganja,
LW1 drew a sample of 100 grams Ganja from the total Ganja for chemical analysis and packed both of them separately with proper seals, and arrested
A1 at 11:15 hours on 8.2.2021, seized remaining contraband under cover of
Mahazarnama. Basing on the confession of A1, LW1 arrested A2 at 11:50 hours on 8.2.2021 at APSRTC Bus Stand, Markapur after explaining the grounds of his arrest, later he registered the mediatornama as Cr.No.30/2021 under Sec.8(C) r/w.20(B) of N.D.P.S.Act and submitted original FIR with
Mahazarnama to the Court and copies of FIR to all the officers concerned, produced A1 and A2 before this court and this court remanded them to judicial custody and took up further further investigation.
ii)During the course of further investigation, on 10.2.2021 LW10 visited the scene of offence, prepared rough sketch of scene, examined LW1 to 6, recorded their statements under Sec.161(3) Cr.P.C. LW10 forwarded the seized material object ie., Sample of Ganja weighing about 100 grams to FSL,
Mangalagiri for analysis and report along with his letter of advice dt.23.2.2021 and authorization letter of Sub Divisional Police Officer, Markapur and obtained acknowledgment. LW9 who is the scientific officer, APFSL,
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Mangalagiri issued report and opined that Item no.1 is analyzed by using physical, chemical and chromatographic methods and it is found to be Ganja, after completion of investigation LW11 filed charge sheet against A1 and A2.
3.Considering the material on record, this court took cognizance of offence punishable under Sec.8(C) r/w.20(b) of N.D.P.S.Act against Accused no.1 and
A2.
4.On appearance of Accused no.1 and 2, copies of case documents were furnished to them as contemplated under Sec.207 of Criminal Procedure Code.
5.The Accused no.1 and 2 were examined under Sec.239 of Criminal
Procedure Code, charges under Se.8(C) r/w.20(b) of N.D.P.S.Act has been framed, read over and explained to them in Telugu. The Accused no.1 and 2 pleaded not guilty and claimed to be tried.
6.To bring home the guilt of accused no.1 and 2, prosecution examined
PW1 to 8 and got marked Ex.P1 to Ex.10.
7.After closure of prosecution evidence, accused no.1 and 2 were called upon to explain the incriminating circumstances that they were appearing in the evidence of prosecution witnesses as contemplated under Sec.313(1)(b) of
Code of Criminal Procedure. The accused no.1 and 2 were denied the same and reported no evidence in defence.
8.LW1 T.Kishore Babu is examined as PW1, LW6 B.Anjaneyulu is examined as PW2, LW3 B.Anil Babu is examined as PW3, LW7 M.Kotaiah is examined as PW4, LW4 P.Kondaiah is examined as PW5, LW10
K.V.Raghavendra is examined as PW6, LW11 B.T.Naik is examined as PW7,
LW9 A.Vamsi Krishna is examined as PW8. Ex.P1 is Mediatornama dt.8.2.2021 at 10:00 AM. Ex.P2 is FIR. Ex.P3 is Rough Sketch. Ex.P4 is Letter of Advise. Ex.P5 is the Letter from SDPO to FSL to analyze sample. Ex.P6 is the Acknowledgment for receipt of sample. Ex.P7 is the FSL report
I A.J.M.F.C., MARKAPUR 7 C.C.1264/2021 dt.22.06.2021.Ex.P8 is the Return of case property. Ex.P9 is the Notice u/Sec.50 of NDPS Act issued by PW1. Ex.P10 is the consent letter of accused no.1. MO.1 is the sealed packed of Ganja weight about 800 grams. MO.2 is the 100 grams of sample ganja. No oral or documentary evidence is adduced on behalf of defence.
9.Heard arguments.
10.Now the point for determination is:
Whether the prosecution has made out the case against the accused no.1 and 2 for the offence under Section 8(C) 20(b) of NDPS Act beyond all reasonable doubts?
11.POINT:
PW1 T.Kishore Babu, SI of Police deposed in his evidence that on 08.02.2021 at about 09.15 hours, he received credible information about the possession of ganja by a person at Alluri Poleramma temple at outskirts of
Markapur Town. He inform the said information to his superiors. He secured the presence of mediators i.e LW.7 Makam Kotaiah and LW.8 Kalangi
Santhaiah through LW.3 V.Anil Babu. He informed the said information to the mediators and after taking their consent, himself along with mediators and his staff LW.3 B.Anil Babu, LW.4 P.Kondaiah and LW.5 G.Venkateswarlu and
LW.2 Ch.V.narayana rushed to Alluri Poleramma temple situated at outskirts of Markapur Town in police jeep bearing No: AP 9P 9787. On seeing the police one person tried to ran away at Alluri Poleramma temple at outskirts of
Markapur Town. He caught hold with the assistance of his staff at the distance of 50 yards. He enquired him as to why he was running on seeing the police.
He also asked the identity particulars of the said person. Then he himself voluntarily revealed his name as Thangellapalli Nagendra Varma S/o Late.
Raju aged about 30 years, Caste by padmasali, R/o NGO’s colony,
Mahaboobabad Town of Telangana State and presently he was residing at
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Uppuguda of Hyderabad. He further stated that he used to purchase ganja from sage in the railway station. On 04.02.2021 he purchased 900 grams of ganja from unknown sage at Khajipeta Railway station. In order to sell the same to the students at Vijayawada and as he cannot go to Vijayawada alone, he informed his friend and college senior I.e A2 Rammohana Chary and promised him to give a share after selling ganja. A2 also agreed the same. On 05.02.2021 both A1 and A2 came to Vijayawada and try to sell the ganja as there is no profit, on 08.02.2021 both A1 and A2 came down to Markapur for selling the same. A1 stood at Alluri Poleramma temple at outskirts of
Markapur Town and sent A2 to the bus stand center to enquire about the purchasers. He asked A1 as he was any objection to search him and whether if the presence of the gazetted officer is necessary for conducting search. Then the A1 gave his consent to search and he stated that he has no objection to search by him in presence of mediators though he is a non-gazetted officer.
Then after taking consent of A1 he searched the bag of A1 and found dried ganja which includes seeds, flowers and leaves. He sent LW.6 B.Anjaneyulu for digital weighing scale. As LW.6 brought the weighing scale, weighed the ganja and he noticed the weight as 900 grams. He separated 100 grams of ganja for the sample purpose to send the same to FSL. The said ganja sealed in plastic covers. He affixed the identity slips to the sample and to remaining ganja of 800 grams. The said slips were signed by the mediators, accused and himself. He informed the A1 that illegal transportation of the ganja and sale of ganja is an offence U/Sec.8(c) r/w 20 (b) of NDPS Act and he arrested the A1 in the presence of mediators under cover of mediator report dated 08.02.2021 at 10.00 hours. He started preparing mediators report at 10.00 hours and completed at 11.30 hours. He asked A1 to show A2 at RTC bus stand. When they reached RTC bus stand and on seeing them A2 tried to ran away from the
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RTC bus stand. Then at 11.50 hours he arrested A2 after informing the grounds of his arrest. He brought the A1 and A2 to the police station. He registered the Ex.P1 mediators report as FIR in Cr.No.30/2021 for the offence
U/Sec.8(c) r/w 20(b) of NDPS Act of Markapur Town P.S and issued Ex.P2
FIR. He submitted the original FIR to the court and copies to the concerned authorities. On the same day he produced before the court for judicial remand. MO.1 is polythene cover containing ganja (800 grams).
12.During the cross examination, he denied the suggestion that there are no signatures of the accused on the cover of MO.1. The crime number is not mentioned the slip affixed to MO.1. The seal of the police station is also not affixed on the slip. He received information about ganja when he was in police station. He sent LW3 Anil Babu to secure mediators immediately after receiving information. The mediators came to the police station within 15 minutes. After mediators arrived the police station he immediately left to the place of occurrence along with mediators and his staff. Witness denied the suggestion that the place of the occurrence is a busy locality and that the
Alluri Poleramma temple is a famous temple in Markapur and many devotes visit said temple everyday. Witness adds that the said temple is busy only
Sunday. The temple is located in between Markapur to Tarlupadu village plying number of vehicles. There is a residential colony behind the temple.
Witness denied the suggestion that buses of private travels will be stalled opposite to Temple in the morning hours. He saw the A1 in front of the main gate of Poleramma temple. He caught hold the A1 while he was tried to run from the place. Mediators stood near the jeep, he brought the A1 near to the jeep to the mediators after catching him at the place of occurrence. He stopped the jeep near the main gate of Poleramma temple. He has conducted search neither in presence of the Gazetted officer nor in presence of
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magistrate. He prepared the mediators report near Alluri Poleramma temple.
He has not prepared separate seizure list. Mediators report is drafted by LW3
Anil Babu. Witness denied the suggestion that he has not complied the mandatory provisions of Sec.50, 57 of NDPS Act. He has not sent information about the occurrence of offence to Narcotics bureau. Witness denied the suggestion that he has not arrested the A1 and that the A1 not gave information about A2 and that he is deposing false. He has not prepared any mediators report or mahazar for arrest of A2. Witness denied the suggestion that he has not complied the provisions of Sec.100 Cr.P.C. Witness denied the suggestion that as the A1 and A2 came down from Telangana state and that with a suspicion and them that they are selling liquor of Telangana state and that a false case was registered against them and that he is deposing false and that he has not given the arrest intimation of the accused to their relatives and that he has not requested any of the local inhabitants to act as mediators and that he has not produce before medical officer after arrest and that he has omitted to state before the Inspector of Police that the A1 and A2 came down to Markapur from Vijayawada on 08.02.2021 and that the A1 sent to A2 to the bus stand area to enquire to anybody available to purchase the ganja and that this case filed against A1 and A2 for statistical purpose and that no ganja was seized from the possession of A1 and A2 and that he is deposing false.
13.PW2 B.Anjaneyulu deposed in his evidence that on 08.02.2021 at about 10.00 to 10.30 hours the PW.1 Kishore Babu telephoned him and informed that on information he along with HC.215, PC.3558, PC,3710, PC.2362 went towards Tarlupadu road and he caught one accused by name Nagendra Varma and he was having ganja at Poleramma Temple and asked him to bring a digital weighing scale to measure the same. Then he has taken one weighing scale to S.I of Police. PW.1 measured the ganja and found 900 grams of ganja.
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Later PW.1 took 100 grams of ganja as sample. PW.1 handed over the weighting scale to him to return the same from whom he brought it. Police examined him and recorded his statement.
14.During the course of cross examination he deposed in respect of A1 that
Inspector of police by name Raghavendra examined him. He do not remember the date on which he was examined by the Inspector of the Police. PW1 telephone him in between 10.00 to 10.30 hours. He went to the Alluri
Poleramma temple within 10 minutes after getting phone call. The A1 is infront of the temple at a distance of 10 meters. Witness adds that he cannot say the exact distance. Total eight persons including him were present at the time of arresting the accused. He brought the weighing machine from the shop known to him in the Markapur Town. The shop owner name is Chennaiah, who is running a Kirana Shop at Nehru Bazar, Markapur. Witness denied the suggestion that the PW1 not seized any Ganja from the possession of the A1 in presence of the mediators and that he is deposing false and that the PW1 not telephoned him and that he is deposing false. During cross examination for A2 he deposed that Ganja was kept in Plastic gunny bag. He do not know whether the Ganja was seized immediately or not. He do not know about the mediators.
He do not know LW8 Kalangi Santhaiah. He do not know whether the LW8 is running a bunk before the police station or not. Witness denied the suggestion that he did not went to the place of arrest and that he is deposing false.
15.PW3 B.Anil Babu, deposed in his evidence that on 08.02.2021 at about 10.00 hrs, himself, PW1, LW2 Ch.V.Narayana, LW4 P.Kondaiah, LW5 Gottam
Venkateswarlu went to Alluri Poleramma Temple along with the mediators namely LW7 Makam Kotaiah and LW8 Kalangi Santhaiah. On seeing them one person ran towards Tarlupadu road. Then himself and police staff and SI
I A.J.M.F.C., MARKAPUR 12 C.C.1264/2021 of Police caught hold him and brought him to the mediators. Then the PW1 enquired the said person in presence of mediators. Then he revealed his name
Thangellapalli Nagendra Varma S/o. Late Raju, aged 30 years, R/o.Mahaboob
Nagar District. He further stated that he habituated to vices and selling Ganja.
He purchased Ganja in Khammam and Warangal areas and he came down to
Markapur to sell the same. Then SI of Police (PW1) asked him whether he can examine the cover present in the hands of the said person. The he stated that he has no objection to examine it. PW1 examined the said cover. Then there is dried flowers, seeds and leaves in the said cover. Then SI of Police (PW1) telephoned to PW2 B.Anjaneyulu to bring weighing scale. PW1 measured the same and found 900 grams. PW1 removed and separated 100grams of Ganja to send the same to RFSL examination. PW1, mediators and accused signed on the slips and affixed the slip to Ganja. PW1 arrested the accused on the same day at 11.15 hrs. PW1 completed the mediators report at 11.30 hrs. He scribed Ex.P1 mediators report at the dictation of the SI of Police (PW1) in presence of mediators.
16.During the course of cross examination he deposed that they started from the police station 9.45 hrs. 8 persons including the driver of the jeep went to the place of arrest. He went to secure the presence of the mediators.
No memos were issued to the mediators. They reached place of arrest at 10.00hrs. The Tarlupadu and Markapur Road is a busy road plying with autos and buses. He do not know whether there is private travels buses opposite to
Alluru Poleramma Temple or not. There is Home guards colony consisting 30 houses behind the Alluru poleramma temple. L.V.Prasad Hospital is located at a distance of 300 yards. Police personnel and the SI of Police chased the accused when he ran towards Tarlupadu road. The said persons stand near a pial opposite to the Alluru Poleramma Temple. The distance between temple
I A.J.M.F.C., MARKAPUR 13 C.C.1264/2021 and pial is about 20 meters. There is main road which leads to Tarlupadu from
Markapur. He started the mediators report at 10.00 hrs. Mediaors, the accused, PW1 and himself signed in the Ex.P1 mediators report. Ex.P1 mediators report completed at 11.30 hrs. Witness denied the suggestion that he is deposing false at the instance of the PW1 and that they never went to the
Alluru poleramma temple and not arrested the accused and that he is deposing false. SI of police examined him and recorded his statement on the same day and that he is deposing false. He stayed along with the PW1 from beginning to and until return to the police station. PW1 asked him to bring
VRO or VRA or any village elders. He do not know the area of service LW7
Kotaiah, VRO. LW7 is the VRO of 10th ward. He brought the LW7 from the
Tahsildar’s Office. He has not handedover any memo to the LW7. They started from the police station at 9.45 hrs. LW8 Santhaiah is running a tea stall near
Apsara Center i.e. opposite to the Police station. By 11.30 hrs he has not seen the A2. Witness denied the suggestion that in Ex.P1 it is scribed as the A2 is also arrested. A2 is arrested at RTC bus stand at 11.50 hrs and that he has omitted to state to the police that A2 was arrested at 11.50 hrs and that no offence took place and that they never went to the place of arrest and he scribed Ex.P1 at the instance of the PW1 and that he is deposing false.
17.PW4 M.Kotaiah deposed in his evidence that on 08.02.2021 at about 10.00 hrs, when he was in his office one police constable came to him and asked to come to the police station stating the SI of Police is calling him. Then himself, PW1, PW3 LW2 Ch.V.Narayana, LW4 P.Kondaiah, LW5 Gottam
Venkateswarlu went to Alluri Poleramma Temple along with the LW8 Kalangi
Santhaiah. They went in a police jeep. On seeing them one person ran towards
Tarlupadu road. Then himself and police staff and SI of police caught hold him and brought him to them. Then the PW1 enquired the said person in his
I A.J.M.F.C., MARKAPUR 14 C.C.1264/2021 presence. Then he revealed his name Thangellapalli Nagendra Varma S/o. Late
Raju, aged 30 years. He purchased the Ganja in Khammam and Warangal areas and he came down to Markapur to sell the same. Then SI of Police (PW1) asked him whether he can examine the cover present in the hands of the said person. The he stated that he has no objection to examine it. PW1 examined the said cover. Then there is dried flowers, seeds and leaves in the said cover.
PW1 measured the same and found 900 grams. PW1 removed and separated 100grams of Ganja to send the same to RFSL examination. PW1, himself, LW8 and accused signed on the slips and affixed the slip to Ganja. PW1 arrested the accused on the same day himself, LW8, PW1 and accused signed on the mediators report. He can identify the accused. Witness identified the A1 in the open court correctly.
18.During the course of cross examination he deposed that presently he is under suspension. On the date of the arrest he was in his office room at 10.00 hrs. There are four VRO’s in Markapur Town. He is the VRO of the area of the place of the arrest. There is a Sachivalayam in Poola Subbaiah Colony. There is a VRO in the said Sachivalayam. No memo was issued to him by the police to act as mediator. MRO is also on duty on that day. He has informed the
Tahsildar about the request of the SI of Police. From the office he went to the police station. From there they went to the place of arrest at 10.15 hrs. They started from the police station at 10.30 hrs. They reached just ahead of the
Poleramma temple within 15 or 20 minutes. The Tarlupadu and Markapur
Road is a busy road plying with autos. There is Home Guards colony consisting of 175 houses behind the temple. There are Satrams of all communities around the temple. There is LV Prasad Hospital at a distance of half kilometer to the temple. The accused ran a distance of 50 to 70 yards towards Tarlupadu road. Mediators report was prepared at the poleramma
I A.J.M.F.C., MARKAPUR 15 C.C.1264/2021 temple by sitting on pial. SI of Police, himself, LW8 and one constable signed on the Ex.P1 mediators report. Ex.P1 started at 11.00 hrs and completed at 12.00noon. Ex.P1 is in two pages. One police constable scribed the Ex.P1 on the dictation of the accused. Witness denied the suggestion that he has not went to the place of arrest and that he signed on the Ex.P1 mediators report in the police station at the instance of the PW1 and that he is deposing false at the instance of the police and that he identified the accused at instance of the police. After completion of Ex.P1 mediators report, he went to his office. Police not examined him subsequently.
19.PW5 P.Kondaiah deposed in his evidence that on 08.02.2021 at about 09.30 hrs, himself, PW1, LW2 Ch.V.Narayana, LW4 P.Kondaiah, LW5 Gottam
Venkateswarlu went to Alluri Poleramma Temple along with the mediators namely LW7 Makam Kotaiah and LW8 Kalangi Santhaiah. On seeing them one person ran towards Tarlupadu road. Then himself and police staff and SI of Police caught hold him and brought him to the mediators. Then the PW1 enquired the said person in presence of mediators. Then he revealed his name
Thangellapalli Nagendra Varma. He further stated that he habituated to vices and selling Ganja. He purchased the Ganja in Khammam and Warangal areas and he came down to Markapur to sell the same. Then SI of Police (PW1) asked him whether he can examine the cover present in the hands of the said person. The he stated that he has no objection to examine it. PW1 examined the said cover. Then there is dried flowers, seeds and leaves in the said cover.
Then SI of Police (PW1) telephoned to PW2 B.Anjaneyulu to bring weighing scale. PW1 measured the same and found 900 grams. PW1 separated 100grams of Ganja to send the same to RFSL examination. PW1, mediators and accused signed on the slips and affixed the slip to Ganja. PW1 arrested the accused on the same day at 11.15 hrs at Poleramma Temple and also
I A.J.M.F.C., MARKAPUR 16 C.C.1264/2021 seized ganja under cover of Ex.P1 mediators report. A1 informed about the presence of A2. A1 further stated that he send A2 into the town to enquire whether anybody available to purchase the ganja or not. Then they came to the bus stand. The A1 not shown the A2 near the bus stand.
20.During the course of cross examination he deposed that police never examined him and not recorded his statements subsequently. They started from the police station at 09.30 hours. LW.5 Venkateswarlu went and secure the presence of mediators. The mediators are also came to the police station, they started along with the mediators from the police station at 9.30 hours.
They reached Alluri Poleramma temple at 09.45 hours. A1 ran away towards the Eastern side into the agricultural fields ie., opposite to the temple. He ran way to the distance of 50 feets towards Eastern direction. He do not know whether there are private travels buses near poleramma temple or not. LW.2
Ch.Narayana, PW.3 Anil Babu and himself caught hold the A1. They caught hold the A1 at 09.50 hours. Witness denied the suggestion that the poleramma temple is a busy locality. At about 10 to 20 persons were present in the temple on that day. He do not know whether there are satrams of all communities in side the temple premises or not. He do not know whether there is home guards colony behind the temple or not. PW3 scribed the Ex.P1 report by sitting on cement benches infront of the temple. Ex.P1 was started at 10.00 hours and completed at 11.30 hours. Witness denied the suggestion that he is deposing false at the instance of the PW1 and that they never went to the
Alluru poleramma temple and not arrested the accused and that he is deposing false. He was present from the beginning i.e starting from the police to again reaching to the police station. He do not when and where the A2 is apprehended by PW.1.
21.PW6 K.V.Raghavendra deposed in his evidence that on 10.02.2021 he
I A.J.M.F.C., MARKAPUR 17 C.C.1264/2021 received C.D file in this case from the then S.I of police T.Kishore Babu and he verified the investigation done by him and found the same to be on correct lines and there after he visited the scene of offence located in front of the
Alluru Poleramma temple in the outskirts of the Markapur town at a distance of four kilometers south from Markapur town Police station. He prepared a
Ex.P3 rough sketch of the crime scene. Thereafter he returned to the police station and secured the presence of the witnesses i.e. PW1 T.Kishore Babu,
LW2 Ch.V.Narayana. PW3 B.Anil Babu, PW5 P.Kondaiah, LW5
G.Venkateswarlu, PW2 BN.Anjaneyulu examined them and recorded their statements U/Sec.161 CrPC. On 23.02.2021 he prepared Ex.P4 letter of advice and obtained authorization from SDPO, Markapur for forwarding Ex.P5 sample ganja seized from the accused to the FSL, Mangalagiri for analysis.On 04.03.2021 he forwarded the sample ganja seized from the accused to the FSL,
Mangalagiri for analysis and obtained Ex.P6 acknowledgment by file
No:SFSL(AP)/318/NAR/64/21.On his transfer his successor Sri.B.T.Naik took further investigation.
22.During the course of cross examination he deposed that there will be no general dairy in Circle Inspector’s office. Witness denied the suggestion that the correct time was not mentioned in Ex.P3 rough sketch. The place is in front of the temple. There is residential houses behind the temple. He has not examined the neighbours of the said colony. He took the print outs of the
Sec.161 Cr.PC statements of PW1 to PW5, LW2 and LW5. He has not taken the signatures of the PW1 to PW5, LW2 and LW5 in Sec.161 CrPC statements. He has not put date at his signature in 161 CrPC statements witness adds that on 10.02.2021 he has examined all the witnesses. If the accused insists for the search before the gazette officer, it is mandatory or it is optional. During his investigation he made efforts to trace out from where the accused got acquired
I A.J.M.F.C., MARKAPUR 18 C.C.1264/2021 the Ganja. But due to transfer he could not trace it out. Number of Gazetted officers are available in the Markapur Town. Witness denied the suggestion the part of investigation is done by PW1. Witness adds that he only detected the offence. He has not recorded the Sec.161 CrPC statements of the mediators for arrest and seizure of property. Witness denied the suggestion that he has not examined PW1 to PW5, LW2 and LW5 in the present case and that the accused came down from Telangana state and with a suspicion over them that they selling liquor, they failed false accusation against them and that the contraband is not seized from them and that this false case was registered for the statistical purpose and that the Accused are no way concerned with the alleged offence and that Mandatory provision of Sec.50 of
NDPS act is not complied with and that Sec.100 of CrPC is not complied in the present case and that he is deposing false and that he has not investigated the case properly and that he has not followed the correct lines detected by the previous officer and that he is deposing false.
23.PW7 B.T.Naik deposed in his evidence that on 05.06.2021 he received the case record from predecessor. He verified the investigation done by his predecessor. He received Ex.P7 FSL report on 22.08.2021. On 24.08.2021 he also received MO.2 sample (Ex.P8 case property) from the FSL through one PC 2361 Kasi Babu. During the verification of the investigation done by the S.I of
Police he noticed that he has issued Ex.P9 notices U/Sec.50 of NDPS Act and take the Ex.P10 consent of the accused in writing. After completion of investigation he filed the charge sheet. PC.2361 Kasi Babu is not cited as witness in present case.
24.During the course of cross examination he deposed that the PC 2361
Kasi Babu is not cited as witness in present case. Witness denied the suggestion that without verifying the investigation done by PW6, he filed the
I A.J.M.F.C., MARKAPUR 19 C.C.1264/2021 charge sheet.
25.PW8 A.Vamsi Krishna, deposed in his evidence that on 04.03.2021 he received one sealed card board box sealed with one seal, which intact and tallying with the sample seal through Sri.Ch. Kasi Babu, PC.2361 of
Markapur Town P.S. The card board box labelled as Cr.No.30/2021 of
Markapur Town P.S containing one polythene cover with panch chit. A ploythen cover labelled as Cr.No.30/2021 of Markapur Town P.S etc containing 1.Green colour dried leaves, flowering and fruiting tops and seeds etc, marked as Item No.1 Nature of examination and test conducted I.Physical examination: a) color b) Odour c) Morphological examination 1) Macroscopic examination 2) Microscopic examination. II Chemical Examination: Colour tests, a) Duquenois levine test b) Fast blue – B salt test, III Separation by solvent extraction IV. Identification by chromatographic method Thin layer chromatography. Item No.1 was analyzed by using above physical, chemical and chromatographic methods and it is found as “Ganja”. Accordingly he issued Ex.P7 report. MO2 is the sample received by him.
26.During the course of cross examination he deposed that he examined the MO2 sample with the assistance of his staff. He personally examined the
MO2 sample. There is no chance to tamper the panch chit. He resealed the
MO2 sample which he examined. He affixed special seal of Narcotics. He has not specified about sealing of the MO2 sample in the report. But he specified in the Ex.P8 acknowledgment about seal of Narcotics. The slips were present inside the polythene cover. Witness adds that the panch chit was affixed on the cardboard box, but not inside the box. Witness further adds that he has not verified whether there are signatures of the mediators on the said panch chit or not. Witness denied the suggestion that he has not examined the MO2 sample and at the instance of the Investigation officer he issued Ex.P8 report
I A.J.M.F.C., MARKAPUR 20 C.C.1264/2021 without examining the MO2 sample and that he is deposing false. He do not know whether the signature of the mediators present over the MO2 sample card board box or not. He only verified the signature with the seal and its signature at the time of receiving sample.
27.The learned Public Prosecutor argued that the police found the accused
No.1 carrying ganja in polythene bags and that the police seized the bags after the accused No.1 disclosing his identity and on confirmation that the material contained in the bags is a ganja, therefore, the police took the samples in the presence of the mediators and the seizure of the material was effected in their presence and a panchanama was written incorporating the happenings at the time seizure and arrest of the accused. There is no illegality committed by the prosecution and prays to convict the accused No.1 and 2.
28.On the other hand, the learned Counsels for the accused No.1 and No.2 contended that the police at the time of search did not apprise the accused of his right to be searched in presence of gazetted officer or in presence of
magistrate.
29.From the discussion of evidence on record it appears that the Pws 1 to 6.
have stated that on 08.02.2021 at about 09.15 hours, they went to Alluri
Poleramma temple at outskirts of Markapur Town in police jeep bearing No:
AP 9P 9787 and it is in the evidence of the PW1 T.Kishore Babu that at the relevant time he was the SI of police of Markapur Town PS and when he went to the Alluri Poleramma Temple, he found A1 Nagendra Varma holding a polythene bag. He searched the bag and opening the bag he found ganja inside the bag in presence of mediators after issuing a notice U/sec.50 of NDPS Act.
Basing on the statement of the A1 in presence of mediators i.e. PW4 M.Kotaiah he went to the RTC busstand and caught hold the A2 Rammohana Chari. He arrested the A1 and A2 and took them to the police station and he immediately
I A.J.M.F.C., MARKAPUR 21 C.C.1264/2021 informed the PW6 K.V.Raghavendra, Inspector of Police.
30. PW6 K.V.Raghavendra, Inspector of police stated that on 10.02.2021 he got information regarding recovery of ganja from one person. PW8 Vamsi
Krishna, Scientic Officer deposed that on 04.03.2021 he received one sealed card board box labelled as Cr.No.30/2021 of Markapur Town P.S containing one polythene cover with panch chit, sealed with one seal, which intact and tallying with the sample seal . The polythene cover labelled as Cr.No.30/2021 of Markapur Town P.S etc containing 1.Green colour dried leaves, flowering and fruiting tops and seeds etc, marked as Item No.1 Nature of examination and test conducted examination and it is found as “Ganja”. Accordingly he issued Ex.P7 report.
31.From the evidence of PWs 1 to 6 it is evident that on the relevant date and time police recovered ganja from a bag in the hand of accused Nagendra
Varma. PW2 Anjaneyulu, PW3 Anil Babu, PW4 Kotaiah (Mediator) and PW5
Kondaiah also testified that the A1 Nagendra Varma had a bag in his hand.
They also stated that police opened the bag after issuing notice to him and found ganja inside the bag. So it is palpably clear that the bag containing ganja was recovered from the possession of accused No.1 Nagendra Varma.
32.On consideration of evidence on record it is find that the evidence of Pws 1 to 8 is reliable and in considered opinion the recovery of ganja from the possession of the A1 has been proved beyond reasonable doubt.
23. Now the question raises whether police recovered /seized the suspected ganja as per the procedure required under NDPS Act. For this the relevant provisions are Sec 42 ,43 and 50 of the Act .
33.Sec.42 of the Act speak of – power to entry, search, seizure and arrest without warrant or authorization.
34.Sec.43 of the Act speaks of – power of seizure and arrest in
I A.J.M.F.C., MARKAPUR 22 C.C.1264/2021 public places.
Sec.50(1) provides condition under which search of a person shall be conducted –when any officer duly authorized u/s 42 is about to search any person under the provision of sec 41, sec. 42 or sec 43, he shall, if such person so requires, take such person without delay to the nearest gazette officer of any of departments mentioned in sec.42 or to the nearest magistrate.
35.It is not in dispute that the seizure was made by PW1 SI of Police and the PW6 Inspector of Police authorized the PW1 to make seizure as per procedure. It is also not in dispute that seizure and arrest was made by police in public place i.e. near Alluri Poleramma Temple. As regard the compliance of provisions of Sec.42 (2) it is found from the evidence of the PW1 and PW6 that immediately after examining the bag containing ganja PW1 informed PW6
Inspector of Police and PW6 rushed to the place of occurrence and took further investigation.
36.However, while arguing the case the ld. Counsel for the accused contended that the police at the time of search did not apprise the accused of his right to be searched in presence of gazetted officer or in presence of
magistrate. Regarding compliance of requirement of Sec.50, the Hon ble‟
Supreme Court in Vijaysinh Chandubha Jadeja vs State Of Gujarat (Indian Kanoon Document No: 1145861) their lordships observed that “ we are of the firm opinion that the object with which right under Section 50(1) of the
NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a
I A.J.M.F.C., MARKAPUR 23 C.C.1264/2021 gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed in Re
Presidential Poll14, it is the duty of the courts to get at the real intention of the
Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole."
37.The Hon’ble Supreme court further observed that “we also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of (1974) 2 SCC 33 the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well”.
38.The Hon’ble Supreme Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before the gazette officer or a
Magistrate, if so required by him.”
I A.J.M.F.C., MARKAPUR 24 C.C.1264/2021
39.The Hon’ble High court of Kerala in Maheswari Vs Jaideep reported in 2004(2) ALT(Crl) 382 Ker = 2004 (3) KLT 88 his lordship observed that “
Accused voluntarily took out the contraband articles from inside her panties and there is no search of body and hence no violation of Sec.50 of the Act.
40.In this case from the materials on record it is found that police searched the polythene bag containing ganja; there was no personal search or police did not search the person of the accused. That apart, it is evident from the evidence of PW1 issued a notice to the Accused No.1 Nagendra Varma as to whether he is having any objection to conduct search and further the A1 reported no objection and after taking the consent of the A1 Nagendra Varma, the PW1 conducted search in presence of the mediators. Hence PW1 SI of police appraised of his valuable right of being searched in presence of Gazetted
Officer as rquired under Sec.50(1) of NDPS Act and after taking consent of the
A1 Nagendra Varma, the PW1 SI of police conducted search of the bag.
41.The Hon’ble Supreme Court in Saikou Jabbi Vs State of Maharastra reported in 2004(1)ALT(Crl) 208 SC it is observed that “Section 50 of NDPS Act applies to personal search not search of the baggage”.
42.The Hon’ble Supreme Court in State of Punjab Vs Balwanti Rai reported in 2005(3) SCJ 683 it is observed that “Search of bags of contraband clearly not a case of personal search and hence Sec.50 of the NDPS Act not arracted”.
43.The Hon’ble High Court of Andhra Pradesh in Ankireddy Ramana
Reddy v. State of A.P. reported in 2005 (3) ALT (Crl.) 176 (A.P.), held that “in case of seizure of ganja from a plastic gunny bag, the authorized person need not comply Section 50 of the Act, as it is not the search of person of the accused. In case of search of person only, the presence of the Gazetted officer is required to be secured”.
I A.J.M.F.C., MARKAPUR 25 C.C.1264/2021
44.So having regard to law and facts it is find that prosecution has been able to prove beyond reasonable doubt that about 900 gm approx. of ganja was seized from the possession of the accused No.1. The said quantity is lesser than commercial quantity and greater than small quantity which is punishable
U/s.20(ii)(B) of NDPS Act. There is nothing on record to show that PW1 recovered any quantity of contraband from the possession of the accused No.2
Rammohana Chari.
45. In view of the above it can be said that prosecution has been able to prove the offence U/s.20(ii)(B) of NDPS Act against accused No.1 Nagendra Varma beyond all reasonable doubt and failed to prove the offence against the
Accused No.2 Rammohana Chari.
46. In the result, the Accused No.2 Rammohana Chari is found not guilty for the offence punishable U/sec.20(ii)(b) of the Narcotic Drugs and Psychotropic
Substances Act and he is acquitted U/sec.248(1) Cr.PC. Accused No.1
Nagendra Varma found guilty for the offence punishable U/s.20(ii)(b) of the
Narcotic Drugs and Psychotropic Substances Act. Accordingly, he is convicted
U/sec.248(2) Cr.P.C.
(Typed to my dictation by the Stenographer, after correction, pronounced by me in the open court, this the 14th day of February, 2022).
Sd/Abdul Rahman Shaik, I Addl.Judicial Magistrate of First Class, Markapur
47.On appearance of the Accused No.1 and 2, Judgment is pronounced.
The Accused No.2 Rammohana Chari is found not guilty for the offence punishable U/sec.20(ii)(b) of the Narcotic Drugs and Psychotropic Substances
Act and he is acquitted U/sec.248(1) Cr.PC. Accused No.1 Nagendra Varma found guilty for the offence punishable U/s.20(ii)(b) of the Narcotic Drugs and
Psychotropic Substances Act. Accordingly, he is convicted U/sec.248(2)
I A.J.M.F.C., MARKAPUR 26 C.C.1264/2021
Cr.P.C. The Accused No.1 was informed about their right to prefer an appeal.
On being questioned, the Accused No.1 submitted he has no sufficient means to engage an advocate to prefer an appeal. An opportunity is given to the
Accused No.1 with regard to the quantum of sentence to be imposed against him. Heard the accused on the point of sentence. It is submitted that the accused is having mother who is suffering from ill health and requires treatment and further submitted that he met with an accident and presently also suffering from Avaclar Necrosis problem and requires treatment. Hence considering his condition in life, lenient view may be taken in respect of sentence.
48.I have considered the facts and circumstances and the submission made by and on behalf of the accused No.1. I feel that the provisions of the probation of offenders act does not apply to the present case. Considering the plea of Accused No.1, I feel that imposition of fine of Rs.10,000/ and rigorous imprisonment for a period of two years for the offence U/sec.20(ii)(b) of the
Narcotic Drugs and Psychotropic Substances Act would meet ends of justice.
49. In the result, The Accused No.2 Rammohana Chari is found not guilty for the offence punishable U/sec.20(ii)(b) of the Narcotic Drugs and
Psychotropic Substances Act and he is acquitted U/sec.248(1) Cr.PC. Accused
No.1 Nagendra Varma found guilty for the offence punishable U/s.20(ii)(b) of the Narcotic Drugs and Psychotropic Substances Act and he is convicted
U/Sec.248(2) Cr.PC and sentenced to rigorous imprisonment for a period of two years and to pay a fine of Rs.10000/ (Rupees ten thousand Only) for the offence U/s.20(ii)(b) of the Narcotic Drugs and Psychotropic Substances Act.
In default of payment of fine, the Accused No.1 is sentenced to undergo simple imprisonment for a period of six months for the offence U/s.20(ii)(b) of the
I A.J.M.F.C., MARKAPUR 27 C.C.1264/2021
Narcotic Drugs and Psychotropic Substances Act. The remand period undergone by the accused No.1 from 07.02.2021 to 14.02.2022 shall be set off
U/sec.428 of Cr.PC. MO.1 and MO2 shall be destroyed after expiry of appeal time. Office is directed to supply the copy of the judgment to Accused No.1 forthwith at free of cost. Office is further directed to prepare conviction warrants accordingly.
(Typed to my dictation by the Stenographer, after correction, pronounced by me in the open court, this the 14th day of February, 2022). Sd/Abdul Rahman Shaik, I Addl.Judicial Magistrate of First Class, Markapur
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
For Prosecution: For Defence: PW1:T.Kishore Babu none PW2:B.Anjaneyulu PW3:B.Anil Babu PW4:M.Kotaiah PW5:P.Kondaiah PW6:K.V.Raghavendra PW7:B.T.Naik PW8:A.Vamsi Krishna
EXHIBITS MARKED FOR
For Prosecution:For Defence: Ex.P1:Mediatornama dt.8.2.2021 at 10:00 AM. Ex.P2:FIR. Ex.P3:Rough Sketch. Ex.P4:Letter of Advise. Ex.P5:Letter from SDPO to FSL to analyze sample. Ex.P6:Acknowledgment for receipt of sample. Ex.P7:FSL report dt.22.06.2021. Ex.P8:Return of case property. Ex.P9:Notice u/Sec.50 of NDPS Act issued by PW1. Ex.P10:Consent letter of accused no.1.
MATERIAL OBJECTS
MO.1:Sealed packet of Ganja weight about 800 grams. MO.2:100 grams of sample ganja. Sd/Abdul Rahman Shaik, IAJMFC