sri B.S . Jag jeevan kumar

NDPS SC 92 of 2015 Sale of toddy adulterated

with Alprazolam

IN THE COURT OF METROPOLITAN SESSIONS JUDGE, CYBERABAD-CUM-

I ADDITIONAL DISTRICT JUDGE, RANGA REDDY

Friday, October 19, 2018

Present: Sri B.S. Jag Jeevan Kumar, B.Sc., LL.M., Metropolitan Sessions Judge-cum-I Additional District Judge

NDPS SC No. 96 of 2015

Name of complainant: The State of Telangana through P&EI, Station Ghatkesar

Name of accused: Balagoni Srisailam Goud S/o Mallaiah, 55 years, R/o H.No.1-42/1, Annojiguda village

Crime Number: Crime No.105 of 2015-16

Charge/s: Under Section 8(c) read with Section 22(b) of the NDPS Act, 1985

Plea of accused: The accused pleaded not guilty.

Finding of Judge: The accused is found not guilty.

Prosecution conducted by: Sri K.Raj Reddy, Public Prosecutor

A1 and A2 defended by: Sri J.Amar Satish, Advocate

Sentence/Order: The accused is acquitted, under Section 235(1) CrPC, of the charge framed against him. His bail bonds shall stand canceled and MO1 shall be destroyed after expiry of appeal time.

This case coming on this day for final hearing before me; upon hearing both the parties and considering the evidence on record and having stood over for consideration till this day, this Court has delivered the following:

JUDGMENT

1.On the charge-sheet filed by R.Baloji Naik, P&EI, Station Ghatkesar, this

Court took cognizance of an offence punishable under Section 8(c) read with

Section 22(b) of the NDPS Act against the accused.

2.After hearing both the parties and considering the case record and the documents submitted therewith, this Court framed the following charge against the accused:

Oct 19 1/7 MSJ, CYB

NDPS SC 92 of 2015 Sale of toddy adulterated

with Alprazolam

That on 15.6.2015 at about 9.00 am at a hut in the outskirts of Rajiv

Gruhakalpa, Annojiguda, he was found selling toddy adulterated with

Alprazolam and thereby committed an offence punishable under

Section 8(c) read with Section 22(b) of the NDPS Act.

The charge was read over and explained to the accused. The accused pleaded not guilty to the charge.

3.The prosecution, to prove the charge, examined five witnesses, PWs1 and 5, and marked six documents, Exs.P1 to P6, and one sample of toddy, MO1.

4.G.Narsing Rao, the then P&EI, Enforcement, Ranga Reddy (PW5) deposed that on 15.6.2015 in the morning hours he received information regarding illegal sale of toddy in the outskirts of Rajeev Gruhakalpa, Annojiguda village. He along with M.Linga Chary, P&EI, Enforcement, Ranga Reddy and staff proceeded to

Annojiguda village. He secured Chakali Shiva (PW1) and Kommu Naveen (PW2) as panchas at Annojiguda village and proceeded to the place where the illegal sale of toddy was being conducted. They found the accused sitting in the chair in a hut without number, keeping 9 plastic crates of toddy, each crate containing 12 bottles, each bottle containing 650 ml toddy. The accused on seeing them tried to escape. With the assistance of their staff, they caught hold of the accused. On his demand, the accused failed to produce licence. He collected small quantity of toddy in a plastic mug and drew two samples each 400 ml, one of which is

MO1, and sealed the samples as per the procedure, in the presence of PWs1 and 2 and the accused and destroyed the remaining toddy under a cover of panchanama, Ex.P6. The accused and PWs1 and 2 signed in the panchanama. He also signed in the panchanama. He arrested the accused. He took the accused along with the case papers and the samples to P&ES, Ghatkesar and handed over the same to the SHO for taking necessary action.

Oct 19 2/7 MSJ, CYB

NDPS SC 92 of 2015 Sale of toddy adulterated

with Alprazolam

5.PWs1 and 2 did not support the prosecution. Their evidence is that about 3 or 4 years back the police called them and obtained their signatures, Exs.P1 and

P2, on the panchanama, Ex.P3. No panchanama was conducted in their presence.

No toddy samples were collected. They did not know the accused. They did not know anything about the case. The prosecution cross-examined them but failed to elicit anything from them. They denied the suggestions given.

6.D.Venu Kumar (PW3) was P&ESI, Station Ghaktesar at the relevant time.

His evidence is that on 15.6.2016 the P&E Enforcement Team, Ranga Reddy handed over to him the accused, the case papers and the samples, one of which is

MO1. He registered a case in COR No.105 of 2015-16 under Section 34(a) of the

AP Excise Act and sent copies of the COR to the Magistrate and other officers concerned. He sent the accused for remand. He sent one of the samples to the

RP&EL, Hyderabad for analysis and report. He received report, Ex.P4, from the

GCE, RP&EL. As the report, Ex.P4, was that the toddy was adulterated with

Alprazolam, he handed over the CD to the P&EI for further investigation.

7.R.Baloji Naik (PW4) was the P&EI, Station Ghatkesar at the relevant time.

He stated that on 31.7.2015 he altered the Section of law to Section 8(c) read with Section 22(b) of the NDPS Act and issued Section alteration memo, Ex.P5, and sent the same to the Court. After completing the investigation, he filed charge-sheet against the accused.

8.After the prosecution closing its side of evidence, the accused was examined under Section 313 CrPC. He stated that the evidence of PWs3 to 5 is false and reported no evidence in their defence.

9. The Public Prosecutor relied on the evidence of PWs3 to 5 and Exs.P3 to

P6 and MO1 and submitted that the prosecution succeeded in proving its case.

Oct 19 3/7 MSJ, CYB

NDPS SC 92 of 2015 Sale of toddy adulterated

with Alprazolam

On the other hand, the counsel for the accused submitted that PWs1 and 2 did not support the prosecution. No independent witness was examined. PWs3 to 5 did not comply with the mandatory provisions of the AP Excise Act and the

NDPS Act. Conviction cannot be based on the evidence of PWs3 to 5.

10.The point for determination is: whether the prosecution succeeded in proving the charge against the accused beyond doubt?

11.As already stated, PWs1 and 2 did not support the prosecution. Then, the alleged raid, search of the hut and drawal of samples from the toddy allegedly found in the hut cannot be said to have been proved beyond doubt.

12.Admittedly, PWs1 and 2 are not from the area where the alleged toddy shop was run. PW5 stated that no customer was there and that he did not examine immediate neighborers of the hut. The mandate of Section 100(4)

CrPC is to take independent and respectable inhabitants of the locality as mediators for search. From the evidence of PW1, it is clear that no efforts were made to take local persons as mediators as required under Section 100(4) CrPC.

The Hon'ble High Court of AP in Gajamker Narayana v. State of AP [2005 (3) ALT (Crl.) 1 (A.P)] observed: "Thus, from the evidence on record, it is clear that the

Excise Officials picked up panch witnesses at the police station and took along with them to the scene of offence situated at a distance of three kilometers.

Neither the testimony of P.W.1 nor that of P.W.2 discloses that they tried to secure independent respectable inhabitants of the locality where the offence was allegedly committed, to act as mediators. Ex.P1, Panchanama, also does not disclose that any effort was made by Excise Officials to secure independent respectable inhabitants of the locality. Therefore, in the absence of specific evidence in that regard, I am bound to come to the conclusion that the provisions of section 100(4) Cr.P.C. are not followed by the Excise Officials while

Oct 19 4/7 MSJ, CYB

NDPS SC 92 of 2015 Sale of toddy adulterated

with Alprazolam seizing the plastic can containing I.D. liquor. Therefore, the seizure made in this case is illegal."

13.Section 58 of the AP Excise Act provides that where any excise officer, not below the rank of an Excise Sub-Inspector, makes any arrest, seizure or search under the Act, he shall, within twenty four hours thereafter, (a) make a full report of all the particulars of the arrest, seizure or search to his immediate official superior; and (b) unless bail be accepted under Section 60, take or send the person arrested or the thing seized, with all convenient despatch; to the nearest Magistrate for trial or adjudication.

14.PW5’s evidence does not show that he followed the procedure prescribed under Section 58 of the AP Excise Act. In the cross-examination, it was elicited from PW5 that he did not report separately to the Deputy Commissioner of

Excise of destroying the toddy after drawal of samples as required under Section 58 of the AP Excise Act.

15.PW5 said no inventory was prepared after the panchanama, Ex.P6. He did not mention in Ex.P6 the procedure adopted for packing and sealing the samples. He did not mention whose seal was affixed to the samples.

16. PW3 stated that he sent one of the samples to the RP&EL, Hyderabad for analysis and report. In the cross-examination, it was elicited from PW3 that he did not file any record to show that the samples were kept in tact from 15.6.2015 till the date of sending the sample to the Government Chemical Examiner and that he did not file any record to show in whose custody the samples were kept till the sample was sent to the Government Chemical Examiner.

17.According to PW5 and as per the panchanama, Ex.P6, and the COR, Ex.P3, the quantity of the samples collected is 400 ml each, but as per the report of the

Oct 19 5/7 MSJ, CYB

NDPS SC 92 of 2015 Sale of toddy adulterated

with Alprazolam

Government Chemical Examiner, Ex.P4, the quantity of the sample received for analysis, is 350 ml.

18.There is no evidence on record to show that the samples were kept safely without giving any scope for tampering. It is the duty of the prosecution to establish that the samples were kept safely in the absence of any independent evidence supporting the version of the prosecution.

19.PW5 stated that the accused was sitting in the chair in the hut. None was examined to show that the hut whereat or wherein toddy was allegedly found and where-from the toddy samples were allegedly collected belonged to the accused.

20.On the basis of the evidence discussed above and faulty investigation by the prosecution, it is not safe to convict the accused for the serious offence of sale of toddy mixed with Alprazolam. The point is, therefore, decided against the prosecution.

21.IN THE RESULT, the accused is found not guilty and is acquitted, under

Section 235(1) CrPC, of the charge framed against him. His bail bonds shall stand canceled and MO1 shall be destroyed after expiry of appeal time.

Prepared and pronounced by me in the open Court on this the 19th day of October, 2018.

METROPOLITAN SESSIONS JUDGE

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution:

PW1Sri C.Shiva PW2Sri K.Naveen PW3Sri D.Venu Kumar, P&ESI

Oct 19 6/7 MSJ, CYB

NDPS SC 92 of 2015 Sale of toddy adulterated

with Alprazolam

PW4Sri R.Baloji Naik, P&EI PW5Sri G.Narsing Rao, P&ESI, Enforcement

For Defence:

Nil

Exhibits Marked For Prosecution

Ex.P1Signature of PW1 on panchanama Ex.P2Signature of PW2 on panchanama Ex.P3COR Ex.P4Report of GCE Ex.P5Section alteration memo Ex.P6Panchanama

Exhibits Marked For Defence

Nil

MOs Marked

MO1One sample bottle of toddy

JUDGE

Oct 19 7/7 MSJ, CYB

NDPS SC 59 of 2015 Contravention in relation to PS

IN THE COURT OF METROPOLITAN SESSIONS JUDGE, CYBERABAD-CUM-

I ADDITIONAL DISTRICT JUDGE, RANGA REDDY AT LB NAGAR

Present: SRI B.S.JAG JEEVAN KUMAR, B.Sc., LL.M., Metropolitan Sessions Judge-cum-I Additional District Judge

Friday, October 19, 2018

NDPS SC No.59 of 2015

(COR No.549 of 2014-15 of P&ES Vikarabad)

Name of complainant:The State of Telangana through P&EI, Station Vikarabad

Name/s of the accused:A1Singaram Lingam Goud S/o Raja Goud, 58 years, Thimmakpally village, Doulthabad Mandal, Medak District

A2Janga Goud S/o Sathaiah Goud R/o Chevella

A3Ramesh Goud S/o Sathaiah Goud @ Narayana R/o Chevella

Crime Number:COR No.549 of 2014-15 of P&ES Vikarabad

Charge/s:Under Section 8(c) read with Section 22(b) of the Narcotic Drugs and Psychotropic Substances Act

Plea of accused:The accused pleaded not guilty.

Finding of Judge:The accused are found not guilty .

Prosecution conducted by:Sri K.Raj Reddy, Public Prosecutor

Accused defended by:Sri P.Goverdhan Reddy, Advocate

Sentence/Order:The accused are acquitted, under Section 235(1) CrPC, of the charge framed against them. The bail bonds of the accused shall stand canceled and MO1 shall be destroyed after expiry of appeal time.

This case coming on 11.10.2018 for final hearing; upon hearing the counsel on record and considering the evidence on record and having stood over for consideration till this day, this Court has delivered the following:

JUDGMENT

1.On the charge-sheet filed by B.S-udhakar, P&EI/SHO, Vikarabad, this Court took cognizance of an offence punishable under Section 8(c) read with Section

Oct 19 1/7 MSJ, CYB

NDPS SC 59 of 2015 Contravention in relation to PS

22(b) of the NDPS Act against the accused.

2.After hearing both the parties and considering the charge-sheet and the documents submitted therewith, this Court framed the following charge against the accused:

That on 19.12.2014 at about 8.30 pm at Lingampally village, A1 was found in possession of 1400 ltrs toddy adulterated with Alprazolam, owned by A2 and supervised by A3 and A1 to A3 thereby committed an offence punishable under Section 8(c) read with Section 22(b) of the

NDPS Act.

The charge was read over and explained to the accused. They pleaded not guilty to the charge.

3.The prosecution, to prove the charge, examined three witnesses, PWs1 to 3, and marked four documents, Exs.P1 to P3 and one material object, MO1.

4.S.Srinivas, the then P&EI, AC Enforcement, Hyderabad (PW1) deposed that on 9.12.2014 he along with Rahmet Pasha and M.Chandrasekhar, P&ESIs,

Enforcement, Hyderabad went to Lingampally tope after collecting panchas at

Lingampally. They went there on information that illegal toddy depot was being run. They found A1 sitting at the illegal toddy depot. On enquiry, A1 gave his name. They introduced themselves to A1 and informed him the purpose of their visit. On search of the depot, they found two plastic drums each containing 200 ltrs toddy. They also found another big plastic drum containing 1000 ltrs toddy.

The spot test conducted was negative for CH. On demand, A1 failed to produce any valid licence to sell toddy. Later, he collected two samples of toddy 350 ml each in two separate bottles. He destroyed the remaining toddy at the spot.

Proceedings were recorded in a panchanama drafted in the presence of panchas,

Narsaiah and Srinivas. Ex.P1 is the panchanama. He arrested A1. A1 stated to

Oct 19 2/7 MSJ, CYB

NDPS SC 59 of 2015 Contravention in relation to PS

him that the toddy depot belonged to A2 and the toddy was supplied by A3 on the instructions of A2. He incorporated the said statement in the panchanama,

Ex.P1. He sealed the samples as per the procedure and pasted chits containing their signatures including the panchas and A1. They all signed in Ex.P1. He went to P&ES Vikarabad and handed over the case papers and the samples to the

SHO.

5.V.Sudhakar, the then P&EI, Station Vikarabad (PW2) deposed that on 9.12.2014 he received case papers, samples and A1 from PW1, registered a case in crime No.549 of 2014-15 under Section 34(a) of the AP Excise Act, issued COR,

Ex.P2, sent Ex.P2 to the Magistrate and its copies to the officers concerned, sent

A1 for remand, deposited the samples, one of which is MO1, before the Court and handed over the CD file to B.Sudhakar, P&EI/SHO, Vikarabad (PW3).

6.The evidence of PW3 is that on receipt of the report of the CE, Ex.P3, that the sample is fermented toddy adulterated with Alprazolam, he issued section alteration memo. The accused surrendered before the Court. After completing the investigation, he filed charge-sheet against the accused.

7.After the prosecution closing its side of evidence, the accused was examined under Section 313 CrPC. The accused stated that the evidence of

PWs1 to 3 is false and reported no evidence in his defence.

8.The Public Prosecutor relied upon the evidence of Pws1 to 3 and Exs.P1 to

P3 and MO1 and submitted that the prosecution succeeded in proving its case.

On the other hand, the counsel for the accused submitted that 24 days’ delay is there in depositing the samples before the Court. In the panchanama and in the report of the CE, the quantity of the samples is mentioned as 350 ml, but in the list of seized property, the quantity of the samples is mentioned as 400 ml. The identity of the samples is doubtful. The alleged panchas were not produced and

Oct 19 3/7 MSJ, CYB

NDPS SC 59 of 2015 Contravention in relation to PS

examined. Section alteration memo is not filed. Rough sketch is not filed.

The accused are falsely implicated.

9.The point for determination is: whether the prosecution succeeded in proving the charge against the accused beyond doubt?

10.The alleged panchas were not produced and examined. Then, the alleged raid and search of the alleged toddy depot and drawal of samples from the toddy allegedly found in the toddy depot cannot be said to have been proved beyond doubt.

11.The alleged panchas are not from near Langimpally tope area. As per the charge-sheet, one panch is from Lingampally village and another panch is from

B.T.S.Colony, Vikarabad. The mandate of Section 100(4) CrPC is to take independent and respectable inhabitants of the locality as mediators for search.

From the evidence of PW1, it is clear that no efforts were made to take local persons as mediators as required under Section 100(4) CrPC. The Hon'ble High

Court of AP in Gajamker Narayana v. State of AP [2005 (3) ALT (Crl.) 1 (A.P)] observed: "Thus, from the evidence on record, it is clear that the Excise Officials picked up panch witnesses at the police station and took along with them to the scene of offence situated at a distance of three kilometers. Neither the testimony of PW1 nor that of PW2 discloses that they tried to secure independent respectable inhabitants of the locality where the offence was allegedly committed, to act as mediators. Ex.P3, Panchanama, also does not disclose that any effort was made by Excise Officials to secure independent respectable inhabitants of the locality. Therefore, in the absence of specific evidence in that regard, I am bound to come to the conclusion that the provisions of section 100(4) Cr.P.C. are not followed by the Excise Officials while seizing the plastic can containing I.D. liquor. Therefore, the seizure made in this case is illegal."

Oct 19 4/7 MSJ, CYB

NDPS SC 59 of 2015 Contravention in relation to PS

12.In the cross-examination, PW1 stated that A1 told him that he was only a labourer working since 1 ½ year on monthly wages. He did not examine any other person as none was in the depot. Then, it is difficult to conclude that A1 was in possession of the toddy allegedly found in the toddy shop.

13.PW1 stated that he did not prepare rough sketch. He did not enquire the name of the person to whom the place where the illegal depot was being run belonged. He did not mention the descriptive particulars of the drums wherein the toddy was allegedly found. Then, one has to doubt whether PW1 inspected the alleged toddy depot, collected samples from the toddy allegedly found there and destroyed the remaining toddy.

14.It was elicited from PW2 that he did not prepare inventory of the articles handed over to him. He claimed that he deposited the samples before the Court concerned on 10.12.2014. It was elicited from him that the sample was sent to the FSL on 3.1.2015. As per the endorsement of the Magistrate on the list of seized property, the samples were received on 3.1.2015 vide CPR No.24 of 2015.

The evidence on record does not show in whose custody the samples were kept during the period from 10.12.2014 to 3.1.2015.

15.Admittedly, the sample was sent to the Chemical Examiner by the Court on 3.1.2015. As per Ex.P3, the quantity of the sample sent to the Chemical

Examiner is 350 ml. But as per the list of the seized property, the quantity of the two samples is mentioned as 800 ml and the quantity of the remaining seized toddy as 1399.200 ltrs, but the quantity of the samples in the list of the seized property was corrected to 350 ml.

16.There is no evidence on record to show that the samples were kept safely without giving any scope for tampering. It is the duty of the prosecution to establish that the samples were kept safely in the absence of any independent

Oct 19 5/7 MSJ, CYB

NDPS SC 59 of 2015 Contravention in relation to PS

evidence supporting the version of the prosecution.

17.Except the alleged statement of A1 to PW1, there is no evidence to conclude that the toddy shop belonged to A2 and that the toddy was supplied by

A3 on the instructions of A2.

18.On the basis of the evidence discussed above and the faulty investigation by the prosecution, it is not safe to convict the accused for the serious offence with which they are charged. The point is, therefore, decided against the prosecution.

19.IN THE RESULT, the accused are found not guilty and are acquitted, under

Section 235(1) CrPC, of the charge framed against them. The bail bonds of the accused shall stand canceled and MO1 shall be destroyed after expiry of appeal time.

Prepared and pronounced by me in the open Court on this the 19th day of October 2018.

METROPOLITAN SESSIONS JUDGE

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution:

PW1Sri S. Srinivas, P&EI, AC Enforcement PW2Sri V. Sudhakar, P&EI, Station Vikarabad PW3Sri B. Sudhakar, P&EI, SHO, Station Vikarabad

For Defence:

Nil

Exhibits Marked For Prosecution

Ex.P1Panchanama Ex.P2COR Ex.P3Report of CE

Oct 19 6/7 MSJ, CYB

NDPS SC 59 of 2015 Contravention in relation to PS

Exhibits Marked For Defence

Nil

MOs Marked

MO1Sample of toddy

JUDGE

Oct 19 7/7 MSJ, CYB

NDPS SC 81 of 2015 Sale of toddy adulterated

with Alprazolam

IN THE COURT OF METROPOLITAN SESSIONS JUDGE, CYBERABAD-CUM-

I ADDITIONAL DISTRICT JUDGE, RANGA REDDY

Friday, October 19, 2018

Present: Sri B.S. Jag Jeevan Kumar, B.Sc., LL.M., Metropolitan Sessions Judge-cum-I Additional District Judge

NDPS SC No. 81 of 2015

Name of complainant: The State of Telangana through P&EI, Station Hayathnagar

Name of accused: 1)Gowri Veera Swamy, S/o Agaiah, 50 years, Vendor, R/o Plot No.191-B, Sriram Nagar Colony, Turkayamjal Village, Hayathnagar Mandal, Ranga Reddy

2)Desagoni Laxmaiah Goud, S/o Swamy, President, TCS, Turkayamjal Village, R/o H.No.1-67, Turkayamjal Village, Hayathnagar Mandal, Ranga Reddy District Crime Number: Crime No.112 of 2012-13

Charge/s: Under Section 8(c) read with Section 22(b) of the NDPS Act, 1985

Plea of accused: The accused pleaded not guilty.

Finding of Judge: The accused are found not guilty.

Prosecution conducted by: Sri K.Raj Reddy, Public Prosecutor

A1 and A2 defended by: Sri A.Venkateshwarlu, Advocate

Sentence/Order: The accused are acquitted, under Section 235(1) CrPC, of the charge framed against them. Their bail bonds shall stand canceled and MO1 shall be destroyed after expiry of appeal time.

This case coming on 11.10.2018 for final hearing before me; upon hearing both the parties and considering the evidence on record and having stood over for consideration till this day, this Court has delivered the following:

JUDGMENT

1.On the charge-sheet filed by B.Nagi Reddy, P&EI, Station Hayathnagar (PW2), this Court took cognizance of an offence punishable under Section 8(c)

Oct 19 1/5 MSJ, CYB

NDPS SC 81 of 2015 Sale of toddy adulterated

with Alprazolam read with Section 22(b) of the NDPS Act against the accused.

2.After hearing both the parties and considering the case record and the documents submitted therewith, this Court framed the following charge against the accused:

That on 17.8.2012 at about 2.00 pm, at toddy shop, TCS, Turkayamjal

Village, A1 was found selling toddy adulterated with Alprazolam and

A2 was the President of the said TCS and thereby committed an offence punishable under Section 8(c) read with Section 20(b) of the

NDPS Act.

The charge was read over and explained to the accused. The accused pleaded not guilty to the charge.

3.The prosecution, to prove the charge, examined two witnesses, PWs1 and 2, and marked four documents, Exs.P1 to P4, and one sample of toddy, MO1.

4.Smt S.Kalpana (PW1), the then P&EI/SHO, Station Hayathnagar, deposed that on 17.8.2012 at about 2.00 pm, she inspected toddy shop, TCS, Thurkayamzal along with two panchas, Venkat Reddy and Prakash, and they found A1 sitting in the shop. She verified the licence and she found it to be correct. They found toddy in 6 wooden crates, each crate containing 12 bottles, each bottle containing 650 ml toddy, total 72 bottles. She collected some toddy in a mud pot and tested it for CH and the test was negative for CH. On suspicion, she drew three samples of toddy in clean and empty bottles and sealed them as per the procedure. Chits containing signatures of A1, Venkat Reddy and Prakash and her signature were affixed to the samples, one of which is MO1. She prepared panchanama, Ex.P1. Venkat Reddy and Prakash and A1 signed in Ex.P1. She returned to the P&ES, issued COR, Ex.P2, and sent the COR , the case papers and the samples to the Court.

Oct 19 2/5 MSJ, CYB

NDPS SC 81 of 2015 Sale of toddy adulterated

with Alprazolam

5.Sri B.Nagi Reddy (PW2), the then P&EI, Station Hayathnagar, deposed that he received CD file from PW1. Based on the report of the Chemical Examiner,

Ex.P3, that the sample is fermented toddy adulterated with Alprazolam, he issued Section alteration memo, Ex.P4, altering the Section of law to Section 8(c) read with Section 22(b) of the NDPS Act. A2 surrendered before the Court. After completing the investigation, he filed charge-sheet against the accused

6.After the prosecution closing its side of evidence, the accused were examined under Section 313 CrPC. They stated that the evidence of PWs1 and 2 is false and reported no evidence in their defence.

7. The Public Prosecutor relied on the evidence of PWs1 and 2 and Exs.P1 to

P4 and MO1 and submitted that the prosecution succeeded in proving its case.

On the other hand, the counsel for the accused submitted that the alleged panchas were not examined, that there is a delay of 8 days in depositing the samples before the Court and sending one of the samples to the Chemical

Examiner and that conviction cannot be based on the evidence of PWs1 and 2.

8.The point for determination is: whether the prosecution succeeded in proving the charge against the accused beyond doubt?

9.The alleged panchas were not produced and examined. Then, the alleged raid and search of the toddy shop and drawal of samples from the toddy allegedly found in the shop cannot be said to have been proved beyond doubt.

10.The alleged panchas are not from the area where the TCS toddy shop is situated. The mandate of Section 100(4) CrPC is to take independent and respectable inhabitants of the locality as mediators for search. From the evidence of PW1, it is clear that no efforts were made to take local persons as mediators as required under Section 100(4) CrPC. The Hon'ble High Court of AP

Oct 19 3/5 MSJ, CYB

NDPS SC 81 of 2015 Sale of toddy adulterated

with Alprazolam in Gajamker Narayana v. State of AP [2005 (3) ALT (Crl.) 1 (A.P)] observed: "Thus, from the evidence on record, it is clear that the Excise Officials picked up panch witnesses at the police station and took along with them to the scene of offence situated at a distance of three kilometers. Neither the testimony of P.W.1 nor that of P.W.2 discloses that they tried to secure independent respectable inhabitants of the locality where the offence was allegedly committed, to act as mediators. Ex.P1, Panchanama, also does not disclose that any effort was made by Excise Officials to secure independent respectable inhabitants of the locality.

Therefore, in the absence of specific evidence in that regard, I am bound to come to the conclusion that the provisions of section 100(4) Cr.P.C. are not followed by the Excise Officials while seizing the plastic can containing I.D. liquor. Therefore, the seizure made in this case is illegal."

11.PW1 stated that A1 was sitting in the shop. In the cross-examination, he stated that he did not file any document to show that A1 was the vendor in the

TCS toddy shop. Then, it is difficult to conclude that A1 was in possession of and was conducting sale of the toddy allegedly found in the TCS toddy shop.

12.In the panchanama, Ex.P1, boundaries of the shop are not mentioned.

PW1 did not draw any rough sketch or topography of the shop. He did not file any document to show that A2 was the President of the TCS. He did not sign in the inspection book maintained in the shop. Then, one has to doubt whether

PW1 inspected the alleged toddy shop and collected toddy samples from the toddy allegedly found there.

13.It was elicited from PW1 that he did not prepare inventory of the articles.

He claimed that he deposited the samples before the Court on the same day of the COR. But as per the endorsement of the Magistrate on the list of seized property, the samples were received on 25.8.2012 vide CPR No.2133 of 2012.

Oct 19 4/5 MSJ, CYB

NDPS SC 81 of 2015 Sale of toddy adulterated

with Alprazolam

The evidence on record does not show in whose custody the samples were kept during the period from 17.8.2012 to 25.8.2012.

14.Further, there is no evidence on record to show that the samples were kept safely without giving any scope for tampering. It is the duty of the prosecution to establish that the samples were kept safely in the absence of any independent evidence supporting the version of the prosecution.

15.The licence of the toddy shop allegedly raided was not seized and produced before the Court. None was examined to show that the shop where- from the samples were allegedly collected belonged to A2.

16.On the basis of the evidence discussed above and faulty investigation by the prosecution, it is not safe to convict the accused for the serious offence of sale of toddy mixed with Alprazolam. The point is, therefore, decided against the prosecution.

17.IN THE RESULT, the accused are found not guilty and are acquitted, under

Section 235(1) CrPC, of the charge framed against them. Their bail bonds shall stand canceled and MO1 shall be destroyed after expiry of appeal time.

Prepared and pronounced by me in the open Court on this the 19th day of October, 2018.

METROPOLITAN SESSIONS JUDGE

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution:

PW1Smt S.Kalpana, P&EI

PW2Sri B.Nagi Reddy, P&EI

Oct 19 5/5 MSJ, CYB

NDPS SC 81 of 2015 Sale of toddy adulterated

with Alprazolam

For Defence:

Nil

Exhibits Marked For Prosecution

Ex.P1Panchanama

Ex.P2COR

Ex.P3CE’s report

Ex.P4Section alteration memo

Exhibits Marked For Defence

Nil

MOs Marked

MO1One sample bottle of toddy

JUDGE

Oct 19 6/5 MSJ, CYB

IN THE COURT OF METROPOLITAN SESSIONS JUDGE, CYBERABAD-CUM-

I ADDITIONAL DISTRICT JUDGE, RANGA REDDY

Present: Sri B.S.Jag Jeevan Kumar,

Metropolitan Sessions Judge-cum-

I Additional District Judge

Friday, October 12, 2018

Crl MP No.4218 of 2018

[Crime No.514 of 2018 of PS Saroornagar]

Between:

Bhusharaj Rama Swamy S/o Late Parvathalu, 36 years, Driver, R/o 20-122/1, Saradanagar, Kodandaramnagar, Saroornagar, RR District

... Petitioner/Accused

And

State of Telangana through PS Saroornagar

... Respondent/Complainant

Counsel for Petitioner : Sri B. Chandrashekhar Raju, Advocate

Counsel for Respondent : Sri K. Raj Reddy,

Public Prosecutor, Ranga Reddy

This petition coming on 08-10-2018 for hearing; upon hearing the counsel for the parties and having stood over for consideration till this day, this Court has made the following:

ORDER

1. The petitioner who is alleged to have committed offences punishable under Section 376(2)(i) IPC and Section 5(m) read with Section 6 of the POCSO Act and who has been in remand since 26.7.2018 seeks bail for the fourth time on the grounds of false implication and completion of investigation.

2. The counsel for the petitioner reiterated the grounds pleaded in the petition and urged for grant of bail to the petitioner.

3. The Public Prosecutor submitted that material part of the investigation is completed and the petition may be considered on merits.

4. No memo or requisition was filed in the crime seeking extension of the remand of the petitioner. Bail to the petitioner is not seriously opposed. In the circumstances and in view of the grounds urged in the petition, it is just and proper to consider the request of the petitioner but on conditions.

5. In the result, the petitioner shall be released on bail on his executing a bond in a sum of Rs.20,000/- with two sureties each in a likesum and on further conditions that he shall appear

before the IO concerned on every Saturday between 10.00 am and 3.00 pm for a period of two

months or till the filing of the charge-sheet, whichever is earlier, and he shall not indulge in any criminal activity and shall not misuse the bail granted to him. The petition is accordingly allowed.

Prepared and pronounced by me in the open Court on this the 12 th day of October 2018.

JUDGE

Copies to:

1) The petitioner through his counsel

2) The respondent through the PP, RR