Smt G.Rajani

IN THE COURT OF THE I ADDITIONAL DISTRICT JUDGE :: VIZIANAGARAM

Present:- Smt. G.RAJANI, I Additional District Judge, Vizianagaram

Friday, this the 10th day of May, 2024

ORIGINAL SUIT NO. 54 OF 2007

Between:-

Bogapurapu Venkata Ramana, S/o late Yerrayya, aged 45 years,Hindu,residingatTagarapuvalasa, Bheemunipatnam Revenue Mandal, Visakhapatnam District.

..PLAINTIFF

And

1.Valle Appalanaidu, S/o. Late Suryanarayana, Hindu, aged about 52 years, cultivation, residing at

Vempadamvillage,Poosapatiregamandal,

Vizianagaram district.

2.Koratana Ramulu, S/o. Late Narayana, 43 years, rest do. (died) (Memo filed stating that no steps required as

L.Rs of D.2 are on record)

3.Koratana Pydanna, S/o. Late Ramana (died)

4.Koratana Ramana, S/o. Late Tatha, Hindu, 35 years, rest do.

5.Pinninti China Ramulu, S/o. Late Pydanna, 35 years, (died)

6.Podilapu Apparao, S/o. Late Pydanna, 40 years, (died)

7.Raavi Appanna, S/o. Late Narayana, 50 years, (died)

8.Raavi Apparao, S/o Appanna, about 40 years, rest do.

9.Seela Chinna, w/o. Venkanna, 35 years, rest do.

10. Seela Sathibabu, S/o. Venkanna, 35 years, rest do.

11. Vempadapu Sanyasi, S/o. Late Pydanna, 40 years, rest do.

12. Vempadapu Chinna Appanna, S/o. Late Rajayya, 42 years, (died),

13. Koratana Narayana, S/o. Ramulu (died)

14. Bandaru Suryanarayana @ Anjibabu, s/o. Appanna, (died)

15. Raavi Sathyanarayana, s/o. Appanna, aged 42 years 2 cultivation,residingatVempadamvillage,

Poosapatirega mandal, Vizianagaram district.

(Defendants No.8 and 15 are the L.rs of the deceased

D.7 who are already on record)

16. Pinninti Seethamma, D/o. Late Chinna Ramulu, 33 years, rest do. (died)

17. Pinninti Narayana Swamy, D/o. Late China Ramulu, aged 18 years, rest do.

(D.16 and D.17 are added as L.Rs of the deceased D.5 as per order in IA 1798/2010 dated 4.2.2010)

18. Vempadapu Sanyasi, S/o. Pydanna, 50 years, rest do.

19. Vempadapu Guruvulu, S/o. Pydanna, 45 years, rest do.

20. Vempadapu Rajarao, S/o. Pydanna, 43 years, rest do.

21. Vempadapu Appanna, s/o. Pydayya, 42 years, rest do.

22. Vempadapu Suri rao, S/o. Pydayya, 40 years, rest do.

(D.18 to D.22 are added as L.Rs of the deceased D.12 as per orders in IA 117/2012 dated 9.8.2012)

23. Koratana Satyavamma, W/o. Late Narayana, 34 years household duties, rest do.

24. Koratana Suresh, S/o. Late Narayana, 11 years (being minor rep. By his mother/guardian D.23), rest do.

25. Koratana Santosh, S/o. Late Narayana, 7 years (being minor rep. By his mother/guardian D.23), rest do.

26. Koratana Ramulu, s/o. Narayana, (died)

27. Koratana Narayanamma, W/o. Ramulu, 66 years, rest do. (D.23 to D.27 are added as L.Rs of the deceased D.13 as per orders in IA 535/2015 dated 7.4.2017)

28. Koratana Satyam, S/o. Late Ramulu, 40 years, rest do.

29. Koratana Pydinaidu, S/o. Late Ramulu, 35 years, rest do.

30. Koratana Ramana, S/o. Late Ramulu, 30 years, rest do.

(D.28 to D.30 are added as L.Rs of the as per orders in

IA 939/2016 dated 7.4.2017)

31. Koratana Ramulamma, W./o. Late Pydanna, 69 years, rest do. (died)

32. Koratana Pydinaidu, S/o. Late Pydanna, 35 years, rest do.

33. Koratana Appalanaidu, S/o. Late Pydanna, Hindu, 30 years, rest do.

(D.31 to D.33 are added as L.Rs of the deceased D.3 as 3 per orders in IA 1425/2017 dated 5.3.2018)

34. Podilapu Ammanna, W/o. Late Apparao, Hindu, 47 years, rest do.

35. Podilapu Krishna, S/o. Late Apparao, 24 years, rest do.

36. Podilapu Adinarayana, S/o. Late Apparao, 20 years, rest do.

(D.34 to D.36 are added as L.Rs of the deceased D.6 as per orders in IA 1426/2017 dated 5.3.2018)

37. Bandaru Venkata Lakshmi @ Bujji, W/o. Late Bandaru

Suryanarayana @ Anjibabi, 45 years, residing at

D.No.1-23 Pasupam village, Poosapatirega mandal,

Vizianagaram district.

38. Bandaru Ramya, D/o. Late Suryanarayana @ Anjibabu,

Hindu, 14 years, rest do.

39. Bandaru Sai, S/o. Late Surayanarayana @ Anjibabu, 12 years, (defendants No.38 and 39 being minors rep. By their mother/guardian D.37)(subsequently D.38 and 39 are declared as majors as per orders in I.A.1179 and 1180 of 2022 dated 22.12.2022) (D.37 to D.39 are added as L.Rs of the deceased D.14 as per orders in IA 1427/2017 dated 5.3.2018)

40. Donthala Satyavathi, W/o. Suribabu, 45 years, residing at Raja Rajeswaripeta, Vijayawada.

41. Nadipena Savithri, W/o. Appalaswamy, 42 years, residing at Kondaguddu, Rellivalasa village,

Poosapatirega mandal.

42. Pathivada Suramma, W/o. Seetharam, Hindu, aged about 40 years, residing at Chinnapathivada village,

Poosapatirega mandal, Vizianagaram district.

(Defendants No.40 to 42 are added as per order in IA 194/2019 dated 31.12.2019 being L.Rs of the deceased D.31)

43. Kalisetti Savithri, W/o. Narayana, residing at

Guddipalem village, Denkada mandal, Vizianagaram district.

44. Vallani Satyavamma, W/o. Ramunaidu, residing at ThallapetaPanchayat,Vempadamvillage, Poosapatirega mandal, Vizianagaram district. (D.43 and D.44 are added as L.Rs of the deceased D.16 as per orders in IA 262/2023 Dt; 20.3.2023 and D.17 who was already on record is also recognized as one of the L.Rs of D.16)

.. DEFENDANTS

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This suit is coming on 19.3.2024 for final hearing before me in the presence of Sri Ch.Damodara Ramamohanarao, Advocate for the plaintiff; the defendants Nos.2, 3, 5, 6, 7, 12, 13, 14, 16, 26 and 31 died pendenti lite;

Sri P.Durga Prasad, Advocate for the defendants No.8 to 10; Sri

B.Satyaarayana and B.Karthik, Advocates for the defendants Nos.2, 11, 17, 23 to 25, 27, 32, 33, 40 to 42; Sri A.Vasudev, Advocate for the defendant

No.37 to 39; and the defendants Nos.4, 18 to 22, 28 to 30, 43 and 44 re- mained exparte; after having been stood over for consideration till this day, this court delivered the following :-

J U D G M E N T

1.This suit is filed by the plaintiff against the defendants for specific performance of the agreement of sale dated: 16.11.2006, to direct the defendants No.1,2,4,8 to 11, 15, 17 to 25 and 27 to 39 and 40 to 44 to execute the sale deed in favour of the plaintiff in respect of the plaint schedule property as per the terms of the agreement of sale dated 16.11.2006 after receiving the balance of sale consideration of

Rs.30,92,000/- payable by the plaintiff within the time to be fixed by this

Court on a duly stamped paper supplied by the plaintiff; and if the defendants fail to execute the sale deed, the sale deed may be executed through this court on behalf of the above defendants. or in the alternative, if for any reason this Court comes to the conclusion that equitable remedy of specific performance cannot be granted, to direct the defendants Nos 1,2,4,8 to 11, 15,17 to 25 and 27 to 39 and 40 to 44 to refund the sum of

Rs.10,00,000/- paid towards advance part sale consideration under the above agreement of sale deed dated 16.11.2006, with interest @ 24% p.a.; to award costs of the suit and for such other reliefs.

2.(i) It is the case of the plaintiff as per the plaint averments that the defendants No.1 to 15 have offered to sell the plaint schedule property to the plaintiff, for which the plaintiff has agreed to purchase @

Rs.5,500/- per cent. The defendants No.1 to 15 have executed an agreement of sale dated 16.11.2006 in favour of the plaintiff agreeing for the above rate and they have also received a sum of Rs.3,50,000/- as advance sale 5 consideration on the said date of agreement of sale, which was duly acknowledged by the plaintiff under the agreement of sale itself. They have agreed to receive the balance sale consideration within 90 days after getting the lands measured.

(ii)It is further averred that thereafter the 1st defendant has received a sum of Rs.50,000/- from the plaintiff on the date of discharge from the hospital and again the 1st defendant received a sum of Rs.3,00,000/- on 8.1.2007 and passed a cash receipt for the above said amounts, later, the 1st defendant has also received a sum of Rs.1,00,000/- on 3.2.2007 and issued a cash receipt and he again received a sum of Rs. 2,00,000/- on 16.02.2007 and issued a cash receipt and on the whole the plaintiff paid a sum of Rs. 10,00,000/- to the defendants.

(iii)It is further contended that later the plaintiff has approached the defendants No. 1 to 15 through the elders to execute the sale deed in favour of the plaintiff as he was ready with the balance sale consideration and the plaintiff has also presented the document before the

Sub Registrar, Bhogapuram for the purpose of registration. The Sub

Registrar, Bhogapuram has also issued notices to the defendants No.1 to 15 calling upon them to execute the document, but they did not turn up and for the reasons best known to them they have been postponing the execution of the sale deed in pursuance of the agreement of sale. Later, the plaintiff got issued a registered lawyer's notice dated 14.2.2007 to the defendants No.1 to 15 calling upon them to receive the balance sale consideration and execute the sale deed. But, the defendants No.1 to 15 did not give any reply notice and did not come forward to execute the registered sale deed. The plaintiff has also published a public notice on 28.02.2007 in Eenadu,

Vizianagaram Edition, when the defendants No.1 to 15 have tried to alienate the plaint schedule properties to third parties. Thereafter, mediations were held by the mediators asking the defendants No. 1 to 15 to execute sale deed in favour of the plaintiff in respect of the plaint schedule property but 6 there is no response from the defendants and they have been postponing the execution of sale deed on some pretext or the other.

(iv)It is further contended that the plaintiff is always ready and willing to pay the balance sale consideration and get the sale deed executed by the defendants No. 1 to 4, 6, 8 to 11 and 22 at his expense, but there is no response. The defendants No.8 to 15 are the legal heirs of the deceased 5th defendant as per the orders of this court in I.A.1798/210 dated 4.2.2010. The defendants No.18 to 22 are added as legal representatives of the deceased 12th defendant as per order of this court in I.A.177/2012 dated 9.8.2012. The defendants Nos 1,2,4,8 to 11, 15,17 to 25 and 27 to 39 and 40 to 44, are obligated to execute registered sale deed in favour of the plaintiff at the expense of the plaintiff for registration. There is no breach of contract on the part of the plaintiff and it is only the defendants No.1 to 15 who committed breach of the contract and there is absolutely no fault or latches on the part of the plaintiff in obtaining the registered sale deed executed from the defendants as he is always been ready and willing to perform his part of contract in terms of the agreement of sale dated 16.11.2006 with the balance sale consideration. Therefore, the suit is filed for specific performance of agreement of sale dated 16.11.2006 and the plaintiff prays to direct the defendants Nos 1,2,4,8 to 11, 15,17 to 25 and 27 to 39 and 40 to 44 to execute registered sale deed in respect of the plaint schedule property at the expense of the plaintiff by receiving the balance sale consideration or else the plaintiff is entitled for the alternative relief, if at all this court comes to the conclusion that it is not possible to get the sale deed executed through the defendants.

(v)It is further contended that subsequent to filing the suit, the notices sent to the 5th defendant were returned unserved as he died prior to the date of issue of notice, therefore, the 16th defendant who is the wife and 17th defendant who is the son of the 5th defendant are added as L.Rs of the deceased 5th defendant.

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(vi)It is further contended that during the pendency of the suit, the 13th defendant died and his L.Rs are brought on record as defendants Nos 23 to 27 as per orders in I.A.534/2015 and 535/2015 dated 7.4.2017. Further, the defendant No.26 also died and his L.Rs are brought on record as defendants Nos. 28 to 30 as per the orders in I.A.938/2016 and 939/2016 dated 7.4.2017. Further, during the pendency of the suit the 3rd defendant also died and the defendants No.31 to 33 are brought on record as

L.Rs of the deceased 3rd defendant as per orders in IA 1420/2017 dated 5.3.2018. Further during the pendency of the suit, the 6th defendant also died and the defendants No.34 to 36 are brought on record as L.Rs of the deceased 6th defendant as per orders in I.A.1426/2017 dated 5.3.2018.

Further, during the pendency of the suit, the defendant No.14 also died and the defendants No.37 to 39 are brought on record as per orders in

I.A.1427/2017 dated 5.3.2018 as L.Rs of the deceased 14th defendant and the defendants No.40 to 42 are added as per orders in I.A.194/2019 dated 31.12.2019. Further, the 16th defendant also died on 9.11.2020 and the defendants No.43 and 44 are brought on record as L.Rs of the deceased 16th defendant as per orders in I.A.262/2013 dated 20.3.2023 as they succeeded the plaint schedule property along with the 17th defendant who is the son of the deceased 16th defendant, who was already on record and recognized as one of the legal heirs of the 16th defendant. Therefore, the plaintiff prays to decree the suit as prayed for.

3.(i) The defendant No.3 has filed his written statement denying the averments raised in the plaint. He totally denied the execution of the suit agreement of sale contending that he is no way connected with the alleged agreement of sale dated 16.11.2006. Neither this defendant nor the 15th defendant have executed any agreement of sale in favour of any person muchless the plaintiff and they have not authorised any person to execute such agreement of sale. The defendants No.4 and 15 do not have any intention to sell their respective lands to any person at any time, 8 therefore, the question of execution of the agreement of sale does not arise.

Further, a perusal of the copy of agreement of sale supplied shows that this defendant or the 15th defendant have never signed the agreement of sale at any time, which clearly shows that this defendant has never executed any such agreement of sale but with a malafide intention, fraudulently to grab the property of this defendant and the 15th defendant, the plaintiff filed this suit against these defendants also. They never received any consideration either from the plaintiff or any authorised person of the plaintiff.

(ii)It is further contended that this defendant and the defendants No.3, 4, 11, 12 and 13 are not at all the owners of either whole or part of the plaint schedule property and they are no way concerned with the plaint schedule property. There is absolutely no direct or indirect nexus between the plaint schedule property and the aforesaid defendants, therefore, the question of execution of the alleged agreement of sale dated 16.1.2006 and receipt of advance sale consideration by them and also receipt of further advance sale consideration as alleged in the plaint, does not arise. This defendant and the other defendants No.4,11,12 and 13 are having sole landed property around the plaint schedule property and they are having thrashing floor around the plaint schedule property. Therefore, the plaintiff is thinking that these defendants are the owners of the plaint schedule property. They never executed any agreement of sale nor committed any breach. The 4th defendant viz., K.Ramana had not at all signed even as per the copy of the agreement of sale supplied by the plaintiff and in the place of the 4th person one K.Satyavathi affixed LTM and as such, the 4th defendant is not a necessary party, but the said Satyavathi who signed agreement of sale is not impleaded as defendant in this suit. It is further contended that the 2nd defendant has never agreed to sell nor executed the agreement of sale or affixed his LTM nor authorised anyone to execute the agreement of sale or receive the sale consideration. Further, the defendants No.1 and 6 have colluded with the plaintiff and brought into 9 existence the alleged agreement of sale. A perusal of the copy of the agreement of sale and pleadings show that absolutely there is no authorisation to the 1st defendant to act on behalf of the authorised owners and how the 1st defendant who is having a small extent of land in the plaint schedule property and how the plaintiff has paid such a huge amount of consideration itself is sufficient to say that the plaintiff and the defendants

No.1 and 2 have colluded in bringing into existence the alleged agreement of sale with a malafide intention to grab the property and harass these defendants. Moreover, the scribe and attestors and the plaintiff along with the defendants No.1 and 6 have colluded in bringing into existence the agreement of sale. The particulars of the plaint schedule property ie., survey number extent, patta number, sub division survey number if any etc., will be known on perusing the land records but as these defendants are not at all the absolute owners, they cannot execute anyagreement of sale and therefore, the contention of the plaintiff is false. The plaintiff has approached thecourt with unclean hands and therefore, the suit is liable to be dismissed.

4.The defendant No.8 filed his written statement, which has been adopted by the defendants No.7, 9 and 10 by filing a memo to that effect. The 8th defendant has totally denied the averments of the plaint. It is contended that the 8th defendant has never agreed to sell the plaint schedule property and he does not know the plaintiff in any manner nor he received any amount or advance sale consideration from the plaintiff as alleged. In fact, the surname of the 8th defendant is not “Raavi” as alleged by the plaintiff but it was “Rali”, therefore, the plaintiff has approached the court with unclean hands even without any acquaintance with the plaint allegations and the plaint averments are created by the plaintiff. It is further averred that this defendant and the 7th defendant are having landed property in an extent of Ac.0.62 cents and the defendants No.9 and 10 are having landed property to an extent of Ac.0.80 cents and the 1st defendant approached this defendant and requested him to sell away the said landed 10 property to the 1st defendant by assuring and undertaking that he will offer a very good rate with respect to the said landed property. Accordingly, some oral negotiations went on between this defendant and the 1st defendant and in that context the 1st defendant has obtained the photostat copies of pattadar passbook of this defendant. Therefore, the 1st defendant in collusion with the plaintiff might have created the aforesaid agreement of sale to cause loss and injury to this defendant in order to grab away the landed property of this defendant and he never executed any agreement of sale nor received any advance sale consideration as alleged. Further, the suit is bad for non joinder and mis-joinder of the parties. The valuation of the suit is also false and incorrect and the suit is barred by limitation and the cause of action alleged is also false and therefore, prays to dismiss the suit.

5.The defendant No.14 has filed his written statement which is adopted by the defendant No.15 by filing adoption memo. Both the defendants No.14 and 15 have totally denied the entire averments of the plaint and it is further contended that they have never executed any agreement of sale nor received any advance sale consideration nor the 15th defendant has ever signed on the said agreement of sale and all the averments are false. The plaintiff in collusion with some other villagers who acted as some of the attestors of the alleged agreement of sale brought into existence the agreement of sale and filed this mischievous suit against these defendants who are no way connected with the same and as they did not execute any such agreement of sale, the question of committing breach of contract does not arise. These defendants are not at all parties to the above suit and the plaint is bad for non joinder and mis-joinder of parties and the property which belongs to these defendants is part of the plaint schedule property has to be excluded and the suit is liable to be dismissed as the plaintiff has approached this court with unclean hands.

6.The defendant No.17 has filed his written statement and the defendants No.2, 3, 11 to 13, 16 and defendants No.32 and 33 have 11 adopted the written statement filed by the 17th defendant by filing an adoption memo to that effect by denying the material averments in the plaint. It is further contended that this defendant and the defendant No.16 are added as parties in the above suit as legal heirs of the deceased 5th defendant, but there are other children of the deceased 5th defendant who are not impleaded in the present suit and as such, the present suit is not maintainable. Further, the 5th defendant has never executed any agreement of sale in favour of the plaintiff nor received any such advance sale consideration and he did not even state anything about the said agreement to this defendant at any time, who is in the habit of conveying even a small issue to this defendant and this defendant has no knowledge about the alleged agreement of sale. Further, the 5th defendant alone is not the absolute owner and the property has devolved upon him along with his other brothers who are no more and as such, their legal heirs are also necessary parties and as such, this suit is bad for non-joinder and mis-joinder of parties to the suit. Therefore, the alleged agreement of sale is created for the purpose of this suit by the plaintiff and the suit is liable to be dismissed.

7.(i) The defendant No.31 has filed his written statement which is adopted by the defendants No.23 to 25 and 27. They also denied the entire plaint averments and further contended that the plaintiff has filed the suit with false and untenable allegations in collusion with the 1st defendant to cause loss and injury to these defendants by suppressing the true and real facts. It is averred that the suit agreement of sale is an incomplete document as there is no signatures or LTM of the 14th executant on the said agreement of sale and as such, the suit agreement of sale is not enforceable under law. Neither this defendant nor the husband of this defendant ie., 3rd defendant have any nexus with the plaint schedule property and he is not at all having any ownership over the plaint schedule property or part thereof. Therefore, the question of the 3rd defendant executing the alleged agreement of sale does not arise and the alleged signature does not 12 belong to the 3rd defendant, the same is forged, created and concocted by the plaintiff with the help of his henchmen to cause loss and injury to the 3rd defendant and also to this defendant and defendants No,.32 and 33. Further, the 3rd defendant has no nexus to the suit sale agreement nor received any sale consideration as alleged by the plaintiff.

(ii)It is further averred that the 3rd defendant during his life time used to inform all the things that happened, daily, to this defendant on the same day itself and he never informed about the present suit sale agreement either to this defendant or defendants No.32 and 33 which is created by the plaintiff. The 3rd defendant unfortunately died leaving behind the defendants No.31 to 33 and also three daughters viz., Smt. Pathivada

Suramma, Smt. Donkala Satyavathi and Smt. Nadipena Savitri, as her legal heirs and the said fact of leaving three other daughters is also mentioned by this defendant in the counter filed in the LR application filed by the plaintiff, but inspite of the same, the plaintiff failed to take any steps to add them as parties to the suit and therefore, the suit may be dismissed for misjoinder of parties.

(iii)It is further contended that during the pendency of the above suit, the 3rd defendant died leaving behind four sons and two daughters among whom only one son is added as defendant No.13 and the remaining three sons and two daughters are not added as parties to the suit.

Likewise, during the pendency of the suit the defendant No.26 died but his wife Smt. Narayanamma and legal heirs of his deceased son Narayana are not added as parties. Further, the 6th defendant also died unfortunately leaving behind his two daughters ie., Smt. Bora Radha and Smt. Mugidi

Kondamma as his legal heirs apart from the defendants No.34 to 36, but the said persons were also not added as parties by the plaintiff and therefore, the suit is liable to be dismissed for non-joinder and mis-joinder of necessary parties, more particularly in a suit for specific performance involving immovable properties.

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(iv)It is further averred that as per the cause title in the sale agreement, the 4th executant is one Koratana Ramana, but his signature or LTM is not found in the entire suit agreement of sale and on the other hand one alleged Koratana Satyavathi’s LTM is seen at the place of the 4th executant but her name is not found in the cause title of the agreement of sale. Likewise, there are many discrepancies in the said sale agreement and the 4th defendant does not have any property within the boundaries mentioned in the plaint schedule.

(v)It is further contended that the plaintiff does not have any capacity to pay the alleged advance sale consideration and also balance sale consideration whatsoever and he is also not ready with the balance sale consideration and other amounts for stamp duty and registration. As seen from the said agreement of sale, it appears that it was tendered for registration and thereafter the same was refused and as such, the said agreement is not valid under law, which itself shows that the plaintiff approached this court with unclean hands. Further, the defendant No.15 is not at all a signatory and he can only put his thumb mark but the copy of agreement shows as if there is LTM of the defendant No.15 but a signature at the column of 15th executant implies that the plaintiff has created and concocted the suit agreement of sale by forging the signature of the 15th defendant. Even the prayer sought by the plaintiff is not in accordance with law and the suit schedule property itself is with wrong particulars without clarity. The defendants No.24 and 25 are minors and the plaintiff has to take appropriate steps for appointing their guardian but he did not file any leave petition for the same. The 1st defendant is having very meager part of land in the schedule property which is also known to the plaintiff but inspite of the same, the plaintiff paying huge amount to the 1st defendant, shows, the collusion between the plaintiff and the 1st defendant to cause loss to this defendant and other defendants. The suit is not only bad for non-joinder and 14 mis-joinder of necessary parties, but also barred by limitation and there is no cause of action to file the suit and therefore, the suit is liable to be dismissed.

8.The defendant No.37 filed his written statement which is adopted by the defendants No.38 and 39. They also denied the material averments in the plaint and they further contended that the husband of the defendant No.37 viz., Bandaru Suryanarayana @ Anjibabu has already filed his written statement but subsequently he died and as such, the defendants

No.38 and 39 are brought on record. Therefore, they are adopting all the pleadings taken by the defendant No.14. It is contended that neither this defendant nor the other defendants have succeeded any movable or immovable properties of the defendant No.14 as the mother and father of the defendant No.14 are alive and no partition took place among them and as such, the question of executing sale agreement by the defendant No.14 does not arise. Even though the plaintiff knows about the class-I legal heirs of the deceased defendant No.14 who are alive as per the table of class-I legal heirs, but all the legal representatives are not added as parties to the suit, hence, the suit is liable to be dismissed for non joinder and mis joinder of necessary parties and the suit is barred by limitation and the cause of action is incorrect, hence, the same is liable to be dismissed.

9.Initially, this court has appointed one Sri M.Yogeswara Rao,

Advocate, as guardian for the defendants No.38 and 39 since they are minors and he filed the written statement on behalf of D.38 and 39 denying the plaint averments, contending that the deceased defendant No.14 never executed any agreement of sale and hence, the question of payment of further consideration either to the defendant No.14 or other defendants or to his authorised person to commit breach of contract on the part of the defendant as alleged by the plaintiff etc., does not arise under any circumstances and the defendants are not at all liable to execute any sale deed in favour of the plaintiff in terms of the alleged agreement of sale dated 16.11.2006, and the plaintiff approached the court with unclean hands and 15 the plaintiff has no cause of action to file the suit, hence, prayed to dismiss the suit with costs. Subsequently, D.38 and 39 were declared as majors as per orders in IA 1179 and 1180 of 2022 Dt; 22.12.2022 and thereafter they have adopted the written statement filed by D.37.

10.The defendants No.40 to 42 have filed their written statement denying the plaint averments. They also contended similar to the defendant No.37 alleging that the suit is filed with false and untenable allegations by the plaintiff in collusion with the 1st defendant to cause loss to this defendant and other defendants and that the 3rd defendant and 31st defendant during their life time used to inform all the things happened during the day, immediately, to this defendant and defendants No.41 and 42 on the same day. But, the defendant Nos 3 and 31 have never informed about the alleged suit agreement of sale in this case at any point of time, which crystallizes that the suit agreement of sale is a created and concocted document, the surname of the defendant No.40 is not “Donthala” but it is “Donkala” which is specifically stated by the 31st defendant in her written statement but, the plaintiff wrongly mentioned the surname of this defendant and the said agreement of sale is created, concocted and forged and the plaintiff filed this suit in collusion with the 1st defendant and his henchmen, the said agreement of sale is incomplete, not enforceable under law and the same is barred by limitation and the defendant reserves her right to file

additional written statement and prayed to dismiss the suit.

11.On the above pleadings, my learned Predecessor has framed the following issues for trial :- i. Whether the plaintiff is entitled for specific performance of the agreement of sale dated 16.11.2006 as prayed for ?

ii. Whether there are any latches on his part in performing his part of contract ?

iii. Whether the time is the essence of the contract ?

16 iv. Whether the suit is bad for non-joinder and mis-joinder of parties ?

v. Whether the plaintiff is entitled for the alternative relief of refund of advance sale consideration of Rs.10,00,000/- with interest @ 24% ?

vi. To what relief ?

One of my learned Predecessors also framed the following issues on 27.2.2020:- vii. Whether the suit agreement is forged one ?

viii. Whether the suit is barred by limitation ?

12.During the course of trial on behalf of plaintiff, P.Ws.1 to 4 are examined and Exs.A.1 to A.8 are exhibited. On behalf of defendants, the chief affidavit of 33rd defendant is filed as D.W.1, but, however, since D.W.1 did not turn up for cross-examination, his evidence was eschewed.

13.Heard both sides. Perused the written arguments submitted by the learned counsel for the plaintiff and the contesting defendants and also perused the entire record.

14.ISSUE Nos 1 TO 4, 7 and 8:- These issues relate to the entitlement of the plaintiff for the relief of specific performance of agreement of sale dated 16.11.2006 and also the latches on the part of the plaintiff and also regarding whether the time is the essence of the contract and whether the suit is bad for non joinder and misjoinder of parties, and whether the suit agreement is forged one and whether the suit is barred by limitation.

The plaintiff’s case is that he entered into an agreement of sale with 15 defendants for purchase of the suit schedule property which is consisting of Ac.7.44 cents in two survey numbers ie., S.Nos 119 and 120 and in furtherance of the said agreement of sale he paid an advance sale consideration of Rs.3,50,000/- to all the defendants and the defendants have 17 agreed to execute the registered sale deed in favour of the plaintiff within 90 days by completing the measurements and survey of the suit schedule land and receiving the balance sale consideration which is fixed @ Rs.5,500/- per cent. Accordingly, even though the plaintiff has paid an advance amount of

Rs.3,50,000/- on the date of the agreement of sale itself and also made further payments on various dates ie., Rs.3,00,000/- on 8.1.2007;

Rs.1,00,000/- on 8.2.2007; and Rs.2,00,000/- on 16.2.2007 and in total he paid Rs.10,00,000/- altogether to the defendants, but the defendants have failed to execute the registered sale deed in favour of the plaintiff and even though the plaintiff has expressed his readiness and willingness to perform his part of contract by keeping the balance sale consideration ready and for registration and though he was present before the Sub Registrar by presenting the document for execution/registration of the said agreement of sale on 14.2.2007, the same could not be completed due to the absence of the defendants, but, however, it amounts to a registered agreement of sale and as such, the defendants are bound to execute the sale deed in his favour by receiving the balance sale consideration, but as they did not come forward for the same, he got issued a legal notice to all the defendants on 14.2.2007 calling upon them to execute the registered sale deed in his favour by receiving balance sale consideration as per the measurements, within one week from the date of receipt of the notice, but having received the said notice, they neither gave any reply nor came forward to execute the registered sale deed and as such, the plaintiff has filed the suit to get the sale deed executed with a direction to the defendants through this court to execute the registered sale deed or else under due process of law through this court, or in the alternative for refund of the advance sale consideration paid by the plaintiff to the defendants.

15.The plaintiff to establish his contention, has got examined himself as P.W.1 and also the scribe of the agreement of sale as P.W.2, and one of the attestors to the agreement of sale as P.W.3 and the attestor of 18 the registered agreement of sale dated 14.2.2007 as P.W.4 and got marked the agreement of sale dated 16.11.2006 as Ex.A.1; the receipt dated 8.1.2007 as Ex.A.2; the receipt dated 8.2.2007 as Ex.A.3; the receipt dated 16.2.2007 as Ex.A.4, the public notice in Eenadu newspaper as Ex.A.5; the office copy of legal notice dated 14.2.2007 as Ex.A.6; the set of 15 postal receipts as Ex.A.7; and the receipt for stamp duty to document No.P15/2006

dated 14.2.2007 as Ex.A.8. Therefore, the contention of the plaintiff is that

in view of the evidence of P.Ws 1 to 4 and Exs.A.1 to A.8 the plaintiff is able to establish that the defendants having agreed to sell the plaint schedule property @ Rs.5500/- per cent and having entered into an agreement of sale and received the advance sale consideration and also subsequent payments given by the plaintiff, they deliberately failed to execute the registered sale deed in favour of the plaintiff as agreed under Ex.A.1/ agreement of sale to complete the measurements and survey, within three months and come forward for registration. The plaintiff as P.W.1 has reiterated the same facts as contended in the plaint while marking Exs.A.1 to A.8 in support of his contention. P.W.2 who said to be the scribe of Ex.A.1 has also filed his chief affidavit in support of P.W.1 and P.W.3 who is one of the attestors to Ex.A.1 has also filed his chief affidavit in support of the plaintiff/P.W.1 and P.W.4 who is one of the attestors to the document tendered ie., Ex.A.1 for registration has also filed his chief affidavit in support of the evidence of the plaintiff/P.W.1.

16.On the contrary, the contention of the contesting defendants is that neither themselves nor their forefathers have ever entered into any agreement of sale as alleged by the plaintiff nor received any such advance sale consideration nor authorised anyone to enter into the suit agreement of sale nor to receive the advance sale consideration in respect of the plaint schedule property in consideration of Ex.A.1, they were never informed by their forefathers with respect to the same and the suit agreement of sale is a forged, created and concocted and not a valid 19 document and was never executed and even the contention of the plaintiff that the registered sale agreement dated 14.2.2007 is validly registered, is false and the said document is not concluded has no binding force and cannot be enforced against the defendants. To establish the same, the defendant No.33 filed his chief affidavit as D.W.1.

17.The defendants No. 1, 4, 8 to 22, 28 to 30, 43 and 44 have remained exparte; and the defendants No.3, 5 to 7, 12 to 14, 16 and 26 died and their respective Legal representatives were brought on record as defendants No.8 to 10, 11, 17, 23 to 25, 27, 32, 33, 40 to 42, 34, 36, 37, 43 and 44. In the written statement filed by all the above defendants their contest is that neither their forefathers nor the defendants themselves have ever informed them about the execution of Ex.A.1/agreement of sale and receipt of advance sale consideration to them and the entire suit documents are created and more particularly Ex.A.1 to A.4 are forged and created documents and as such, they are not binding on them. Further, as evident from Ex.A.1 alleged agreement of sale, some of the defendants out of defendants No.1 to 15, the 4th defendant one Koratana Ramana has never signed on Ex.A.1 and the signature of the 14th defendant is kept blank and the 15th defendant has also never signed on the agreement of sale which is evident from the document itself and the cross-examination of the plaintiff and his witnesses also establish the same and as such, the suit agreement of sale is not binding on the defendants and the plaintiff is not entitled for the relief sought and since as seen from Ex.A.1/agreement of sale the time is the essence of the contract as it is mentioned in Ex.A.1, the plaintiff has to pay remaining sale consideration within three months and get the sale deed executed and since the plaintiff has failed to pay the remaining sale consideration within three months and perform his part of contract, the suit is barred by limitation. Further, as the plaintiff did not implead all the legal heirs of some of the deceased defendants, the suit is bad for non joinder of necessary parties and Ex.A.1 shows the thumb impression of Koratana 20

Satyavathi at S.No.4 allegedly the wife of the 4th defendant and since Ex.A.1 does not reflect the signature of the defendants No.14 and 15, the suit is bad for misjoinder of necessary parties and there is no cause of action to the suit and the suit is liable to be dismissed.

18.Even though it is vehemently contested by the defendants as above and the defendant No.33 who filed the chief affidavit as D.W.1 vehemently contended in his chief affidavit reiterating the same facts as mentioned in the written statement that due to demise of the 3rd defendant he is added as party in this suit and the 3rd defendant does not have any sort of right, title, interest and possession or nexus to the plaint schedule property and as such the question of execution of the alleged agreement of sale by the 3rd defendant does not arise and he never received any advance sale consideration nor informed the same to this defendant and that the alleged signature of the 3rd defendant on Ex.A.1 does not belong to him and the same is forged, created and concocted by the plaintiff in collusion with the scribe and attestors and as such, the suit is liable to be dismissed against him, after filing his evidence affidavit in chief, D.W.1 did not turn up for cross- examination and his chief evidence was eschewed by this court on 29.8.2023. But, even thereafter D.W.1 did not turn up with any petition and as such, there is no merit in the arguments advanced by the learned counsel for the contesting defendants.

19.On the contrary the learned counsel for the plaintiff submitted a ruling in the case of VIDHAYADHAR VS. MANIKARO AND

OTHERS reported in 1999 (3) ALT 1(SC), wherein it was held that “Where a party to the suit does not appear into the witness box and state his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that he case set up by him is not correct.”

Therefore, in view of the above ruling also which squarely applies to the circumstances of this case, there is no substance in the contention raised by the defendants that they have never executed the suit 21 agreement of sale nor received the balance sale consideration either by the defendants No. 1 to 15 or by the other defendants except those who remained exparte that their forefathers have neither executed any agreement of sale nor received any balance sale consideration in pursuance of the agreement of saleunder Ex.A.1. Therefore, the defendants could not substantiate the pleas raised by them in their written statements and as

D.W.1 did not turn up for cross-examination, there is no proof for the contentions raised by him either in his written statement or in his chief affidavit. Even the remaining defendants who are contesting the suit have failed to adduce any evidence in this case except making some suggestions to P.Ws 1 to 4 during cross-examination. Therefore, the plaintiff is able to establish that the defendants No.1 to 15 have entered into the agreement of sale under Ex.A.1 in respect of the plaint schedule property agreeing to sell the same to the plaintiff @ Rs.5,500/- per cent, received the advance sale consideration and also agreed to execute the registered sale deed within three months by receiving the balance sale consideration and also by concluding the measurements of the suit schedule property and the survey.

20.Now coming to the issue whether there are any latches on the part of the plaintiff in performing his part of contract and whether time is the essence of the contract. Even though it is vehemently contested by the defendants and also the learned counsel for the contesting defendants that the time is the essence of the contract as the plaintiff has agreed to receive the balance sale consideration within three months and perform his part of contract within three months, but as he failed to do so, the suit is barred by limitation as time is the essence of contract, as seen from Ex.A.1 it is clearly recited therein that the plaintiff has to pay the balance sale consideration and get the sale deed executed within three months and also the defendants have to complete the measurements of the suit schedule property within that time as per the measurements of the land, which clearly shows that it is not only the plaintiff who has to get ready with the balance sale consideration 22 within three months but also the defendants have to get themselves ready by completing the measurements. Admittedly, the suit agreement of sale was dated 16.11.2006 whereas this suit is filed by the plaintiff on 31.10.2007 and Ex.A.6 notice was also issued to the defendants on 14.2.2007 which is well within the period of limitation and there is no proof as contended by the defendants that whether they are also ready to execute the sale deed in favour of the plaintiff by completing the measurements of the land within those three months time. Therefore, the contention of the contesting defendants that the time is the essence of the contract and in that regard the suit is barred by limitation, has no force. Further, as seen from Exs.A.2 to A.4 they are the cash receipts allegedly issued by the 1st defendant in favour of the plaintiff for part of the remaining sale consideration received by the 1st defendant on 8.1.2007 (Ex.A.2); on 8.2.2007 (Ex.A.3) and on 16.2.2007 (Ex.A.4), and as such, it cannot be said that the suit is barred by limitation.

21.It is also the contention of the learned counsel for the contesting defendants that neither the defendants No.2 to 15 have received any sale consideration from the 1st defendant nor there is any proof that the 1st defendant who allegedly received the amount has received the same on behalf of the other defendants and also there is any proof that the 1st defendant has distributed either the advance sale consideration received by him under Ex.A.1 or under Exs.A.2 to A.4 to all the defendants No.2 to 15 equally, as per their proportion of land and as such, no consideration is received by the defendants. In this regard some suggestions are made to

P.W.1 during his cross-examination which was admitted by P.W.1 during his cross-examination that he paid advance sale consideration of Rs.3,50,000/- under Ex.A.1 to the 1st defendant to be distributed among 15 executants but he cannot say the quantum of amount given by the 1st defendant to each one of the executants and the specific amount paid to each one of the executants is not mentioned in Ex.A.1 or in the plaint or in his chief affidavit. Similar suggestion is made to P.W.2 who is the scribe of Ex.A.1 and he also admitted 23 during cross-examination that the 1st defendant received the sale consideration amount from the plaintiff and he informed that he distributed the advance amount to all the farmers ie., 15 members and to his knowledge the 1st defendant received the amounts from the plaintiff for five times and he does not know on which dates the 1st defendant paid advance amounts to the farmers in his presence. Similar suggestion is made to P.W.3 who is the 1st attestor of Ex.A.1, he also revealed during cross-examination that he cannot say the details of the advance amount received by each farmer and further stated that the 1st defendant received Rs.3,50,000/- on behalf of 15 farmers and he distributed the same to them and he denied the suggestion that no amount was paid by the plaintiff on that day to the farmers through the 1st defendant. Similarly P.W.4 who is the 1st attestor to registered agreement of sale dated 14.2.2007 has also revealed during his cross- examination that he has no record to show that he was present on the date of Ex.A.1 which took place between the plaintiff and 15 ryots and he cannot say the denomination of currency of advance amount of sale consideration and the entire sale consideration amount ie., advance amount was given to the 1st defendant by the plaintiff and in turn it was distributed to all the ryots and there is no specific mention in Ex.A.1 about receiving of advance money by each of the ryots and how much amount was received by each ryot, even today he is unable to say which of the ryots received how much amount under Ex.A.1.

22.The above suggestions made to P.Ws 1 to 4 and their admissions clearly show that the entire advance sale consideration was paid on 16.11.2006 and the subsequent amounts were received by the 1st defendant on behalf of (probably) 15 executants but there is no proof or endorsement of each of the 15 executants with regard to receipt of the advance sale consideration by them proportionately as per their part of land and there is no proof that the 1st defendant has received the said amount on 24 behalf of all the ryots/15 executants which was admitted by P.W.1 in his cross-examination.

23.In view of the above testimony which clearly shows that as the defendants/executants of Ex.A.1 have agreed to measure the property and received the balance sale consideration as per the measurements within 90 days they cannot say that the time is the essence of the contract since there is no proof that they have ever entered intimated to the plaintiff that they have completed the measurement of land and ready to perform their part of contract since they received advance sale consideration according to the plaintiff. Therefore, in view of this point it cannot be said that the time is the essence of the contract or that the suit is barred by limitation since the suit is filed in the year 2007 itself whereas the suit agreement of sale was

dated 16.11.2006.

24.With regard to the non-joinder and mis-joinder of parties is concerned, in the cross-examination P.W.2 has admitted that to his knowledge one person among 15 persons has not signed in the agreement of sale and his name is Bandaru Suyryanarayana @ Anjibabu ie., the defendant

No.14 and he did not come on that day and his wife Chinnammalu came there but she did not sign in the sale agreement and she told that her husband will sign the same. When Ex.A.1 was confronted to P.W.2 he admitted that Serial No.14/vendor kept blank and 15th vendor’s name is mentioned as Ravi Satyanarayana by him and he did not affix his thumb impression and the name of Koratana Satyanavathi is not mentioned as executant No.4 of Ex.A.1, but she affixed her thumb impression on Ex.A.1 as 4th vendor. One Koratana Ramana who is shown as 4th executant of Ex.A.1 did not sign on Ex.A.1. P.W.3 during his cross-examination when he was confronted with Ex.A.1, has also stated that the defendants No.14, 15 and 4 have not signed in Ex.A.1. P.W.4 has also admitted during cross-examination that except one person all persons have signed in Ex.A.1 and on behalf of the remaining one person, his wife signed in Ex.A.1. As evident from Ex.A.1 the 25 signature of the 14th defendant was absent in Ex.A.1 and the signature of the 4th defendant was also absent on Ex.A.1, however, his wife signed on his behalf in Ex.A.1. Even though it is contended that the defendant No.15 did not sign in Ex.A.1, the defendant No.15 did not file any written statement countering this plea. The 14th defendant has filed his written statement contending that he never signed in Ex.A.1. His signature is also not found in

Ex.A.1 and kept blank. Further, even though it is contended that the 4th defendant has also not signed, it appears that on his behalf, his wife has signed and it is not seriously disputed since the 4th defendant has remained expate.

25.Therefore, the contention of the defendants that the suit is bad for non-joinder and mis-joinder of necessary parties, it is only the 14th defendant who did not mark his signature and the same is kept blank in

Ex.A.1, even though it is contended that the 15th defendant has also not signed in Ex.A.1. Though one Ch.Gopi filed vakalat for the 15th defendant, he did not file any separate written statement of his defense and he only adopted the written statement filed by the defendant No.14, and as far as the 4th defendant is concerned, he remained exparte. Therefore, except the contention of the 14th defendant whose signature is not found on Ex.A.1 who is allegedly added as party under misconception that he is not an executant to Ex.A.1, the remaining plea taken by the defendants that the suit is bad for non-joinder of necessary parties cannot be accepted since the plaintiff has impleaded all the L.Rs of the deceased by filing various Interlocutory

Applications viz., as per orders in I.A.No.1978/2010 dated 4.2.2010 the defendants No.8 and 15 are added as L.Rs of the deceased defendant No.5; as per orders in I.A.No.117/2012 dated 9.8.2012 the defendants No.18 to 22 are added as L.Rs of the deceased No.12; as per orders in I.A.No.535/2015

dated 7.4.2018 the defendants No.23 to 27 are added as L.Rs of the

deceased defendant No.13; as per orders in I.A.Nos.938 and 939 of 2016

dated 7.4.2017 the defendants No.28 to 30 are added as L.Rs of the

26 deceased defendant No.26; as per orders in I.A.1425/2017 dated 5.3.2018 the defendants No. 31 to 33 are added as L.Rs of the deceased defendant

No.3; as per order in I.A.1426/2017 dated 5.3.2018 the defendants No.34 to 36 are added as L.Rs of the deceased defendant No.6; as per orders in IA 1427/2017 dated 5.3.2018 the defendants No.37 to 39 are added as L.Rs of the deceased defendant No.14; and as per orders in I.A.194/2019 dated 31.12.2019 the defendants No.40 to 42 are added as L.Rs of the deceased defendant No.31; and as per orders in I.A.262/2023 dated 20.3.2023 the defendants No.43 and 44 are added as L.Rs of the deceased defendant

No.16. Hence, it cannot be said that the suit is bad for non-joinder and mis- joinder of necessary parties.

26.But, since as admitted by the plaintiff as P.W.1 and P.Ws 2 and 3 scribe and attestors of Ex.A.1 the signature of the executant No.14 is not found in Ex.A.1, therefore, it cannot be said that the defendant No.14 is an executant of Ex.A.1 agreement of sale. Further, even though one

Koratana Satyavathi has signed at Sl.No.4 who is said to be the wife of

Koratana Ramana as suggested to P.W.1, but, however, since the executant

No.4 ie., the 4th defendant has remained exparte and did not bring into record in what circumstances the signature of his wife is found on Ex.A.1, it can be presumed that he himself allowed his wife to sign on his behalf. On that count only adding executant No.14 who is not a signatory to Ex.A.1 can be considered as misjoinder of necessary party as he is not at all shown as a signatory even though he is shown as the defendant No.14 in this case.

Even though it is contended that the defendant No.15 has not put his signature and only his name is mentioned, there is no proof for that and it looks like he signed on Ex.A.1 but he failed to file any written statement even though he appeared before this court. Even though the defendants took the plea that Ex.A.1/agreement of sale is forged, created and concocted, no evidence is adduced by the contesting defendants to substantiate their plea and it is settled law that pleadings without evidence and vice versa cannot be 27 taken into consideration, hence, the contention of the contesting defendants that Ex.A.1/agreement of sale is forged, created and concocted cannot be accepted. Therefore, issue Nos 2 to 4, 7 and 8 are answered accordingly.

27.ISSUE NOS 1 AND 5:- Issue Nos 1 and 5 relate to the relief claimed by the plaintiff in the suit. Even though it is discussed at length in the aforementioned paragraphs about issue No.1, it is necessary to look into this issue again in consonance with issue No.5. Issue No.1 relates whether the plaintiff is entitled for specific performance of agreement of sale

dated 16.11.2006. In order to establish the same the plaintiff has to prove

the contents of Ex.A.1 and also with regard to the schedule of the property mentioned therein with specific survey numbers, boundaries and extents and portion of land owned by each and every executant of Ex.A.1 before coming to the conclusion that the executants No.1 to 13 and 15 have agreed to sell their respective lands to the plaintiff and the portion of land of each executant in that schedule with specific boundaries and survey numbers since the remedy and the relief claimed by the plaintiff is an equitable remedy relating to a landed property for which this court has to look into the portions of land, specific boundaries and the survey numbers accordingly.

But, as seen from the schedule of Ex.A.1 it is a blanket schedule given to the entire portion of extent of Ac.7.44 cents in S.Nos 119 (five pratulu) and

S.No.120 (26 pratulu) and boundaries are mentioned as,

East: Rastha (way) to Jaggucheruvu

South: Canal leading to Pedda Cheruvu

West: Cart way and thrashing floor and dry land of sons of

Koratana Somanna and brothers of Appalanaidu

North: Road in between these boundaries Ac.7.44 cents of land is situated. But, there is no specific mention of share and portion of each and every executant in

Ex.A.1 in which case it is very difficult to decide how much of land each executant is having in the above said Ac.7.44 cents and their boundaries and value. Further, there is a specific recital in Ex.A.1 that the 28 defendants/vendors have to measure the land and handover at the time of execution of the registered sale deed which clearly shows that the land of each executant is not specified in Ex.A.1. Further, it is the contention of some of the contesting defendants that they have only small portions of land which is not specifically described in Ex.A.1, which is evident and admitted by

P.Ws 1 to 4 also during their cross-examination. Therefore, it is very difficult to grant the equitable remedy of specific performance of agreement of sale to the plaintiff without there being a specific portion of land of each and every executant and boundaries of their respective portion, and it becomes impossible to decide the same for this court when the plaintiff himself is not specific with regard to the extents and portions of land the vendors are owners as evident from the schedule mentioned in Ex.A.1. Therefore, this court cannot grant the relief of specific performance of agreement of sale by directing the defendants to execute the registered sale deed in favour of the plaintiff.

28.Now coming to the remedy of alternative relief claimed by the plaintiff, the evidence of P.Ws 1 to 4 and also Exs.A.1 to A.4, no doubt establish that the plaintiff has paid not only advance sale consideration of

Rs.3,50,000/- but also some other amounts to a tune of Rs.10,00,000/- at different times after execution of Ex.A.1, in furtherance of the agreement of sale towards part sale consideration as requested by the defendants. Even though the defendants vehemently contended that they have not received the amounts from the 1st defendant which is admitted by P.Ws 1 to 3 also during their cross-examination that on the date of Ex.A.1, the defendant No.1 did not pay or distribute the amounts to the other ryots in their presence, but, as seen from Ex.A.1 it is clearly mentioned that an advance sale consideration of Rs.3,50,000/- was received by the executants at the time of execution of Ex.A.1 and their signatures also appear in Ex.A.1, made in the presence of the attestors which is affirmed by P.Ws 2 and 3. Therefore, it is proved that the defendant No.1 along with other executants received 29 advance sale consideration of Rs.3,50,000/- from the plaintiff under Ex.A.1 on 16.11.2006. As admitted by P.W.2, the 1st defendant has received the amounts for five times. Further, as admitted by P.W.3 in his cross- examination all the 15 farmers were present at the time of Ex.A.1 and all of them have signed on it and Rs.3,50,000/- was given to all the farmers by the plaintiff at that time and the defendants No.14 and 15 were also present among 15 farmers.

29.Therefore, it is evident that all the 15 farmers have received the amount from the plaintiff out of the advance sale consideration of Rs.3,50,000/- paid by the plaintiff to the 1st defendant. Even though it is contended that the 4th defendant was not present one Satyavathi has signed in his place in Ex.A.1, during cross-examination of P.W.3 it is elicited that the wife of the 4th defendant by name Satyavathi received the amount and she told that her husband will come and sign in Ex.A.1 and after that the 4th defendant was not present, and some persons received the amount on behalf of defendant No.15 stating that the defendant No.15 will sign later on

Ex.A.1, which clearly shows that even though the 4th defendant was not present the amount was received by his wife on his behalf and even the amount on behalf of the defendant No.15 was received by some persons, which clearly shows that from the advance sale consideration the wife of 4th defendant and some persons on behalf of the defendant No.15 have received amounts. But, however, at S.No.14 the name of the defendant No.14 is kept blank whereas at S.No.4 the name of wife of the 4th defendant is mentioned as Koratana Satyavathi.

Therefore, it cannot be said that the 4th defendant as well as the 15th defendant did not receive any amount from the advance sale consideration. Even the denial of other defendants with regard to not receiving any amount towards advance sale consideration cannot be accepted since they did not file any proof that the signatures of Ex.A.1 do not belong to them, while the receipt of money is proved even from the 30 suggestions made to P.Ws 2 and 3 during their cross-examination. But, however, with regard to the other receipts filed by the plaintiff under Exs.A.2 to A.4 the entire amount was received by the 1st defendant and in Exs.A.2 to

A.4 there is no whisper that the 1st defendant has received the amounts under Exs.A.2 to A.4 either on behalf of other executants of Ex.A.1 or towards the balance sale consideration in respect of the transaction under Ex.A.1 or that he is authorised to receive the said amounts on behalf of the executants and no signature of any of the executants was found on Exs.A.2 to A.4 even to establish that the 1st defendant has received the amounts on behalf of other executants under Exs.A.2 to A.4. The 1st defendant has remained exparte and did not come into witness box to speak about the truth in which case an adverse inference can be drawn against the 1st defendant with regard to receipt of money under Exs.A.2 to A.4 by the 1st defendant alone but not on behalf of other executants under Ex.A.1. If a witness who has knowledge of certain facts and evidence deliberately remains exparte and does not come into witness box to speak about the truth, it can be adversely inferred against him that what he stated and contended is deliberately suppressed by that person. Therefore, except the amount of advance sale consideration of Rs.3,50,000/- received by the 1st defendant and other executants under Ex.A.1, there is no proof that the amounts under Exs.A.2 to

A.4 were received by the 1st defendant on behalf of the other executants or that he was authorised to receive the said amount on behalf of the other executants under Ex.A.1 in which case, even though it is proved by the plaintiff that he paid advance sale consideration of Rs.3,50,000/- under

Ex.A.1 and also the remaining amounts to a tune of Rs.6,50,000/- under

Exs.A.2 to A.4 it can be inferred that the 1st defendant has received the said amounts for himself and did not account for the same to the other executants of Ex.A.1. But, however, to disprove the same, the 1st defendant has remained exparte and other defendants even though the chief affidavit of the defendant No.33 was filed as D.W.1, he did not face cross-examination 31 and his chief affidavit was eschewed by this court. Therefore, even though the plaintiff is able to establish that he paid the advance sale consideration towards part payment for the suit schedule property under Ex.A.1 not all the defendants are liable to pay the entire sale consideration by refund except the 1st defendant as he failed to account for the same.

30.Therefore, from the evidence of P.Ws 1 to 4 and their cross- examination and Exs.A.1 to A.4 even though the plaintiff is able to establish that he paid advance sale consideration of Rs.10,00,000/- at different times and under different spells he is entitled to recover the advance sale consideration of Rs.3,50,000/- from all the executants while the remaining part of sale consideration paid by him to the 1st defendant, he is entitled to recover from the 1st defendant alone as there is no proof that the said amount has reached other executants or the 1st defendant has signed in

Exs.A.2 to A.4 by receiving the above said amounts for and on behalf of all the executants and he was authorised to do so.

31.Therefore, from the evidence of the plaintiff and his witnesses, the plaintiff is certainly entitled to the relief, but in view of the aforesaid discussion as it is impossible to grant the relief of specific performance of agreement of sale, this court feels that the ends of justice would be met if the plaintiff is granted the alternative relief of refund of amounts from the defendants. Since the defendant No.14 is not an executant and as the plaintiff failed to prove that the defendant No.14 is an executant of Ex.A.1, no liability can be fastened over the defendant No.14 and hence, the defendant No.14 is entitled to be exonerated from the relief claimed. However, the defendants No.1 to 13 and 15 and the legal representatives of those deceased defendants are liable to refund the advance sale consideration of Rs.3,50,000/- to the plaintiff with interest @ 12% p.a. from the date of filing the suit till the date of decree and thereafter @ 6% p.a. from the date of decree till date of realisation realisation on the said amount and the 1st defendant alone is liable to pay the remaining 32 advance sale consideration amount of Rs.6,50,000/- received under Exs.A.2 to A.4, along with interest 12% p.a. from the date of filing the suit till the date of decree and thereafter @ 6% p.a. from the date of decree till date of realisation realisation on the said amount. Hence, these issues are answered accordingly.

32.ISSUE NO.6:- To what relief ?

IN THE RESULT, the suit is partly decreed with costs, by granting the alternative relief of refund of the advance sale consideration paid by plaintiff under Ex.A.1 by directing the defendants No.1, 4, 8 to 11, 15, 17 to 25, 27 to 36, 40 to 44 to pay the amount of Rs.3,50,000/- to the plaintiff towards advance amount received under Ex.A.1, along with interest @ 12% p.a., from the date of filing the suit till the date of decree and thereafter @ 6% p.a. from the date of decree till date of realisation on the said amount.

Further, the 1st defendant alone shall pay the plaintiff the advance sale consideration amount of Rs.6,50,000/- received by him under Exs.A.2 to A.4, along with interest @ 12% p.a. from the date of filing the suit till the date of decree and thereafter @ 6% p.a. from the date of decree till date of realisation realisation, on the said amount. The claim against the defendant

No.14 and his L.Rs viz., defendants No.37 to 39 is dismissed without costs.

Further, the relief of specific performance claimed by the plaintiff is rejected.

Dictated to the Stenographer Gr.I, transcribed by him corrected

and pronounced by me in open court on this the 10 th day of May, 2024.

Sd/- G.Rajani

I ADDITIONAL DISTRICT JUDGE,

VIZIANAGARAM.

Appendix of evidence

Witnesses examined

For plaintiff:- For defendants:

P.W.1: Bhogapurapu Venkata Ramana D.W.1:Koratana Appalanaidu (D.33)

P.W.2 : Pinninti Sanyasinaidu (evidence eschewed)

P.W.3 : Pinninti Pothu Naidu

P.W.4 : Gare Jagannadham @ Jagannadha Rao 33

Documents marked

For plaintiff:-

Ex.A.1/Agreement of sale dated 16.11.2006

Ex.A.2/Cash receipt dated 8.1.2007 issued by the 1st defendant for

Rs.3,50,000/-

Ex.A.3Cash receipt dated 8.2.2007 issued by the 1st defendant for

Rs.1,00,000/-

Ex.A.4/Cash receipt dated 16.2.2007 issued by the 1st defendant for

Rs.2,00,000/-

Ex.A.5/Paper publication in Eenadu local edition of Vizianagaram district

Ex.A.6/Office copy of lawyer’s notice dated 14.2.2007 issued to the defendants No.1 to 15

Ex.A.7/15 postal receipts

Ex.A.8/Receipt dated 27.8.2007 for Rs.16,500/- issued by the Sub

Registrar, Bhogapuram.

For defendants: NIL

Sd/- G.Rajani

I ADDITIONAL DISTRICT JUDGE,

VIZIANAGARAM.

1

IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF CASES UNDER

NDPS ACT-CUM-I ADDITIONAL DISTRICT AND SESSIONS JUDGE AT

VIZIANAGARAM.

Present:- Smt.G. RAJANI,

Special Judge for trial of cases under NDPS Act-cum-

I Additional District & Sessions Judge, Vizianagaram

Friday, this the 28th day of June, 2024

N.D.P.S. SESSIONS CASE No. 48 of 2016

Name of the Complainant: State represented by the Inspector of Police, S.Kota circle. Name of the accused : 1. Aganthabudi Ganapathi Rao @ Ganesh, S/o. Dharmarao, 26 years, ST Valmiki, Korra village,Dumbrigudamandalof Visakhapatnam district.

2. Agathambidi Suneel Kumar, S/o. Bujjayya, 20 years, St Valmiki caste, Korra village, Dumbriguda mandal of Visakhapatnam district.

3. Mattam Balaraju, S/o. Late Keswarao, 21 years, ST Bagatha caste, Kosangi village, Dumbriguda mandal of Visakhapatnam district.

4. Sujit Singh (case against A.4 is separated and numbered as NDPS SC

7/2023)

Charges: Under Section 8(c) r/w 20(b)(ii)(B) of N.D.P.S. Act, 1985. Plea of the accused: Accused pleaded not guilty

Finding of the Judge: A.1 and A.2 are found guilty, A.3 is not found guilty. Sentence of order : IN THE RESULT, the accused Nos 1 and 2 are found guilty for the offence punishable under sec.8(c) r/w 20(b)(ii)(B) of the NDPS Act, 1985, and accordingly they are convicted under Sec.235 (2) Cr.P.C, for the said offence, and accordingly, the accused No.1 is sentenced toUNDERGO RIGOROUS IMPRISONMENT for a PERIOD OF 5 (FIVE) YEARS and also to pay fine amount of Rs.20,000/- (Rupees: Twenty Thousand only) and in default of payment of fine amount, he shall

UNDERGO SIMPLE IMPRISONMENT FOR

SIX MORE MONTHS for the offence punishable under Sec. 8(c) r/w 20(b)(ii)(B) of the N.D.P.S.Act. Further, the accused No.2 2 is sentenced to UNDERGO RIGOROUS IMPRISONMENT for a PERIOD OF 5 (FIVE) YEARS and also to pay fine amount ofRs.20,000/- (Rupees: Twenty Thousand only) and in default of payment of fine amount, he shall UNDERGO

SIMPLE IMPRISONMENT FOR SIX MORE

MONTHS for the offence punishable under Sec. 8(c) r/w 20(b)(ii)(B) of the N.D.P.S.Act. M.Os.1 to 6 shall be kept in safe custody as the case against accused No.4 who is the main culprit in this case is pending by splitting up in view of his absconding and M.O.7 shall be confiscated to the State after the expiry of appeal time as A.4 is no way concerned with M.O.7 and only A.1 and A.2 were found while travelling on M.O.7. The rest of the case property shall be preserved till A.4 is arrested and trial against A.4 is completed in NDPS SC 7/2023. The period of detention already undergone by the accused Nos 1 and 2 , if any, shall be given set off under Sec.428 Cr.P.C. The accused No.3 is found not guilty for the offence punishable under sec.8(c) r/w 20(b)(ii)(B) of the NDPS Act, 1985, and accordingly he is acquitted under Sec.235 (1) Cr.P.C, for the said offence. The accused No.3 is directed to execute personal bond under Sec.437-A Cr.P.C. Prosecution conducted by: Sri Bellana Ravi, Special Public Prosecutor. Defence conducted by: Sri P.Rajanikanth, Advocate for the accused

This case coming on 27.5.2024 for final hearing before me in the presence of Sri Bellana Ravi, Special Public Prosecutor for the complainant/State and Sri P.Rajanikanth, Advocate for the accused; and after hearing both sides and the matter having been stood over for consideration till this day, this court delivered the following :-

J U D G M E N T

1. The Inspector of Police, S.Kota circle, has filed the charge sheet against the accused Nos 1 to 4 for the offence punishable U/s.8(c) r/w 20(b)(ii) of the N.D.P.S. Act, 1985, in Crime No.140/2016 of S.Kota Police

Station.

3

2.(i) As per the contents of the charge sheet, the brief facts of the case are, that all the accused are close associates and A.1 to A.3 are residents of Dumbriguda mandal of Visakhapatnam district, whereas A.4 is resident of Bakariya village, Majowliya mandal, Bettaha district of Bihar

State. The offence took place at Devi Statue Junction of S.Kota village within the limits of S.Kota Police station.

(ii)On 31.5.2016 at about 03.00 hours on receipt of reliable information, Sri K.Ravi Kumar, S.I of Police, S.Kota Police Station (LW

1) along with T.Venkatarao-PC.311, Ch.Pratap-PC.784, G.Anil Kumar-PC 376,

E.Ramnaidu-PC 2224 and B.Sagar Babu-S.I of Police, S.Kota Police Station (Lws 5 to 9 respectively) rushed to Devi Statute junction, S.Kota and conducted vehicle checking with their assistance. Whileso, around 03.00 hours he intercepted one bajaj pulsar motorcycle bearing No. AP 31 A 2673 which is coming from Araku side. The S.I has questioned the two riders of the bike and enquired their names and addresses and also regarding the luggage bag carried with them, upon that A.1/Aganthabudi Ganapathirao has confessed that A.4 viz., Sujit Singh has asked to supply ganja and gave

Rs.5,000/- to him; himself and A.2/Agathambidi Suneel Kumar have procured 10 K.Gs of ganja from Paduva village area from unknown person. As per the instructions of A.4, he packed the ganja in two paper packets weighing about 4 K.Gs and also packed another 6 K.Gs ganja which was taken away by A.3 and A.4 at the instance of A.4, A.1 and A.2 are transporting ganja to RTC complex, S.Kota to handover the ganja to A.4 and also to collect the balance cash, but they were caught by the police. On revealing as above, the S.I has sent requisition to Sri Rayavarapu Dilip Kumar, Superintendent, Community

Health Center, S.Kota (LW 1) for search of A.1 and A.2 and on receipt of the requisition the said R.Dilip Kumar (LW 1) reached the spot, secured the presence of two V.R.Os viz.,Mahisarla Jaganmohanarao and Thammiraju 4

Venkata Atchutaram (Lws 2 and 3), served notice to A.1 and A.2 for their objections regarding their personal search and A.1 and A.2 gave consent in writing. On that, he questioned their complicity and A.1 and A.2 have confessed about their guilt, then he secured the presence of one weighing person viz., Doni Janardhanarao (LW 4) for weighing the ganja and got it weighed which came to 6 K.Gs from which he collected samples of 100 grams each from every packet marked as 1A, 2A, 3A and 1B, 2B, 3B, handed over

A.1, A.2, 6 K.Gs of ganja along with the motorcycle bearing No. AP 31 BW 2673 to the S.I of Police under the cover of mediators report which was drafted at the spot from 3.00 hours to 4.35 hours.

(iii)Basing on the confessional statement of A.1 and A.2, the S.I of Police along with VROs and the police staff rushed to RTC complex,

S.Kota, served notice to A.3 and A.4 to search them, A.3 and A.4 gave their consent in writing upon that the said Superintendent, CHC, S.Kota (LW 1) questioned them and they also confessed their guilt and the Superintendent,

CHC, S.Kota (LW 1) has seized 4 K.Gs of ganja found in black colour luggage bag, which is weighed by Doni Janardhanarao (LW 4) and he collected two samples from the luggage bag marked as 4A, 5A and 4B and 5B under the cover of mediators report drafted at the spot from 4.45 hours to 6.00 hours duly attested by the VROs and the weighing person (LW 4) and A.3 and A.4.

Later, the S.I of Police has registered the mediators report as crime

No.140/2016 under Sec.8(c) r/w 20(b)(ii) of the NDPS Act. Later, Sri

S.Lakshmana Murthy, Inspector of Police (LW 12) took up investigation, visited the scene of offence, recorded the statements of two witnesses, arrested A.1 to A.4 and sent them for judicial remand and forwarded the material objects to the Government Chemical examiner (LW 10) for opinion and after receiving the opinion in which it is opined that the samples are ganja. Later, Sri B.Ramana Murthy, Inspector of Police, S.Kota circle (LW 13) 5 has filed the charge sheet against the accused Nos 1 to 4. Hence, the charge.

3.The case was taken on file by my Predecessor in office for the offence punishable under Section 8 (c) r/w 20 (b) (ii) (B) of the NDPS Act, 1985, against the accused Nos 1 to 4 and was registered as NDPS

S.C.No.48/2016. Subsequently, the accused No.4 failed to appear before this court even though NBW was issued, hence, the case against him is separated and numbered as NDPS SC 7/2023 and the present case is tried against the accused Nos 1 to 3 only.

4.On the appearance of the accused Nos 1 to 3, the copies of the documents were furnished to them. Upon hearing both sides, on 1.8.2023, a charge under Section 8 (c) r/w 20 (b) (ii) (B) of NDPS Act, 1985, was framed against the accused Nos 1 to 3, as per Sec.228(2) Cr.P.C, read over and explained to them in Telugu, they pleaded not guilty and claimed to be tried.

5.(i) The prosecution has examined P.Ws 1 to 10 and marked

Exs.P.1 to P.22 and M.Os.1 to 7, to establish the case of the prosecution. On behalf of accused, Exs.D.1 and D.2 are marked. P.W.1 is the Superintendent,

Community Health Center, S.Kota. P.Ws.2 and 3 are the VROs of S.Kota.

P.W.4 is the weighing person. P.Ws 5 and 6 are police constables working in

S.Kota Police Station and participated in the raid. P.W.7 is the S.I of Police, who participated in the raid. P.W.8 is the S.I of Police, who received information about illegal transportation of ganja and conducted raid at Devi

Bomma junction and detected the offence. P.W.9 is the Inspector of Police, who conducted investigation in this case and filed preliminary charge sheet in this case. P.W.10 is another Inspector of Police, who got conducted inventory through JFCM, S.Kota, received Chemical Examiner’s report and filed charge sheet after completion of investigation.

(ii)Ex.P.1 is the mediators report dated 31.5.2016 drafted at 3.00 a.m. Ex.P.2 is the signature of P.W.1 on Ex.P.1/mediators report.

6

Ex.P.3 is another mediators report dated 31.5.2016 drafted at 4.45 a.m.

Ex.P.4 is the signature of P.W.1 on Ex.P.3/mediators report. Ex.P.5 is the signature of P.W.1 on Ex.P.1. Ex.P.6 is the signature of L.W.2 on Ex.P.1. Ex.P.7 is the signature of P.W.2 on Ex.P.3. Ex.P.8 is the signature of L.W.2 on Ex.P.3.

Ex.P.9 is the signature of P.W.7 on Ex.P.1. Ex.P.10 is the signature of P.W.7 on

M.Os 2 to 4. Ex.P.10-A is the signature of P.W.7 on M.Os 5 and 6. Ex.P.11 is the signature of P.W.7 on Ex.P.3. Ex.P.12 is the signature of P.W.8 on Ex.P.1.

Ex.P.13 is the signature of P.W.8 on Ex.P.3. Ex.P.14 is the original FIR in

Cr.No.140/2016 of S.Kota Police station. Ex.P.15 is the rough sketch of the first scene of offence (devi bomma junction, S.Kota). Ex.P.16 is another rough sketch of the second scene of offence (RTC complex, S.Kota). Ex.P.17 is the original covering letter. Ex.P.18 is requisition issued by P.W.7 to P.W.1 (carbon copy). Ex.P.19 is the memo filed before the JFCM, S.Kota. Ex.P.20 is the inventory report. Ex.P.21 is the FSL report. Ex.P.22 is the letter of intimation sent by P.W.9. M.O.1 is the dark violet colour bag, M.Os 2 to 6 are the samples, and M.O.7 is the motorcycle bearing No. AP 31 BW 2673. Ex.D.1 is the contradiction in the Sec.161 Cr.P.C. statement of P.W.1 and Ex.D.2 is the contradiction in Sec.161 Cr.P.C. statement of P.W.4.

6.After closure of the prosecution side evidence, the accused were examined under section 313 Cr.P.C, explaining the incriminating material appearing against them in the evidence of prosecution witnesses.

The case of accused is total denial. They further stated that they have no defense evidence.

7.Heard arguments advanced by the Special Public Prosecutor and the learned counsel for the accused.

8.Now the point for determination is, “Whether the prosecution is able to establish the guilt of the accused Nos 1 to 3 for the offence punishable under Section 8 (c) r/w 20 (b) (ii) (B) of the N.D.P.S. Act , 1985, beyond reasonable doubt and whether the accused Nos 1 to 3 are liable for punishment for the said offence?” 7

9.POINT :- P.W.1 in this case is Superintendent, Community

Health Center, S.Kota who acted as Gazetted Officer and P.Ws 2 and 3 are the

VROs of S.Kota, P.W.4 is the weighing person, P.Ws 5 and 6 are the police constables who accompanied the raiding team. P.W.7 is the S.I of Police who assisted P.W.8 another S.I of Police who conducted raid/proceedings and registered the FIR. P.W.9 is the Inspector of Police, who conducted part of investigation and P.W.10 is another Inspector of Police, who filed the charge sheet.

10.The contention of the learned Special Public Prosecutor is that the accused Nos 1 and 2 are found in possession of 6 K.Gs of ganja and were caught red handed on 31.5.2016 at 03.00 hours at Devi Statue junction,

S.Kota, while transporting ganja on their motorcycle bearing No. AP 31 BW 2673 and the same is done in the presence of the police team (L.Ws 5 to 9) and when the accused Nos 1 and 2 were caught red handed while checking the vehicles with the above contraband, the S.I of police enquired them upon which they confessed that A.4 has asked them to supply ganja, upon which they procured 10 K.Gs of ganja at Paduva village from unknown person and wrapped it in 3 packets of 2 K.Gs each separately and two packets of 2 K.Gs each separately and gave the other two packets of 2 K.Gs each to A.3 and

A.4 and asked them to wait at RTC complex, S.Kota and while A.1 and A.2 by keeping the three packets of 6 K.Gs of ganja while proceeding towards RTC complex they were caught red handed by the police team and upon enquiry when they confessed about the offence and also about A.3 and A.4 waiting at the bus station with the remaining contraband, then the S.I of Police sent a requisition to the Superintendent, Community Health Center, S.Kota to conduct search as required to be done in the presence of the Gazetted

Officer. Then the said Gazetted officer reached the spot and informed the accused about the offence and also called for the weighing person and two 8

VROs and conducted search in their presence and seized 6 K.Gs of ganja from them by collecting samples and also drafted a mediators report at that spot and seized ganja, samples and the motorcycle and basing on their confession he also proceeded to RTC complex of S.Kota and found A.3 and A.4 with bag containing two packets of 2 K.Gs each of ganja and after obtaining their consent, and as they confessed about the offence, he also got the ganja weighed through the weighing person, collected two samples from each ganja bag and also drafted a mediators report at RTC complex, S.Kota attested by the mediators and also the accused and registered the mediators report as Crime No.140/2016 under Sec.8(c) r/w 20(b)(ii) NDPS Act, and later, the Inspector of Police investigated into and filed charge sheet and hence, the prosecution is able to establish the guilt of the accused Nos 1 to 3 for the offence punishable under Sec.8(c) r/w 20(b)(ii)(B) of NDPS Act. The evidence of P.Ws 1 to 10 and Exs.P.1 to P.22 and M.Os 1 to 7 has clinchingly establish the guilt of the accused and therefore, the prosecution case is proved against the accused.

11.On the other hand, the contention of the learned defense counsel is that there are several admissions in the cross-examination of P.W.1 and inconsistencies with regard to the time of receipt of information and receiving requisition and there are several discrepancies between the evidence of P.Ws 1, 2 and 3 and also several admissions by P.W.4 weighing person and there are contradictions between the evidence of P.Ws 4 and 7 and likewise there are inconsistencies and discrepancies of time in the evidence of P.Ws 5, 6, 7, 8, 9 and 10 in view of the inconsistencies and discrepancies more particularly with regard to the receipt of information, conducting of raid and also conducting proceedings of mediatornama and seizure of contraband and samples, the prosecution has utterly failed to prove the guilt of the accused for the alleged offence under Sec.8(c) r/w 9 20(b)(ii)(B) of NDPS Act, and therefore, the accused are entitled for acquittal under benefit of doubt. The learned defense counsel has also submitted rulings (1) in the case of MANGILAL VS. STATE OF MADHYA PRADESH reported in 2023 ALL SCR (ONLINE) 591 and (2) in the case of VIJAY

PANDEY VS. STATE OF UTTAR PRADESH reported in 2019(2) ALD (Crl)

604 (SC) and (3) in the case of STATE OF RAJASTHAN VS. GURMAIL

SINGH reported in 2005 Cri.L.J.1746, and in view of the said rulings, the prosecution case is not proved and the search and seizure is not conducted as per the mandatory provisions of Sec.50 of the Act, and also non production of seized material and also failure of the prosecution to explain whether the seized samples were seized from the accused and as such, in view of the rulings also the prosecution case cannot be believed, and hence, the learned defense counsel contends that the guilt of the accused is not proved beyond reasonable doubt and the accused are entitled for acquittal, as the prosecution failed to prove its case.

12.As seen from the evidence of P.W.1 who is the

Superintendent, Community Health Centre, S.Kota, he deposed regarding his night duty on 31.5.2016 and at 2.30 a.m, police calling him to come to Devi

Statue junction, S.Kota by sending a requisition (Ex.P.18) to attend at Devi

Bomma Junction, and accordingly, he proceeded to Devi Bomma Junction by which time two VROs (Pws 2 and 3) and two persons with one motorcycle bearing No. AP 31 BW 2673 were present. When he enquired them, they revealed their names as Ganapathirao/A.1 and Suneel Kumar/A2, then he revealed his identity and when questioned they revealed that they are doing ganja business and took advance of Rs.5,000/- from one person and brought ganja packets from a person at Araku. When P.W.1 informed them that he has to check their bag as he has suspicion, which is in the possession of A.1, they reported no objection and when he opened the bag there are three 10 packets in brown colour, he made small hole to one packet and found it to be ganja. Then they sent for weighing person, the weighing person came and weighed and found that each packet was containing 2 K.Gs and total there is 6 K.Gs of ganja, they have drawn samples of 100 grams each from each packet, from all the three packets, sealed the packets and affixed their signatures ie., S.I of Police, VROs, accused and himself to the sample packets and prepared a mediators report for the proceedings which is Ex.P.1 and his signature is Ex.P.2 and also identified the two persons in the court hall and that along with him two VROs, two Sub Inspectors of Police, two accused have also signed on the report. He further revealed that after completion of the report, basing on the confession of A.1 and A.2 with regard to two more persons at S.Kota RTC complex, they proceeded to RTC complex, found two more persons and on enquiry they revealed their names as Balaraju/A3 and

Sujit Kumar Sing/A4 and also that they have two packets of ganja in the possession of A.3/Balaraju, the weighing person has weighed the ganja and found 2 K.Gs in two packets totalling to 4 K.Gs, there also they have drawn samples of 100 grams each from each packet, affixed their signed slips to the samples and prepared another mediators report which is Ex.P.3 and Ex.P.4 is his signature and after that P.W.1, two S.Is, A.3 and A.4 and the VROs have signed on the second mediators report, he also identified Balaraju/A3 in the court hall and stated that the fourth person Sujit Sing is not present in the court hall and further revealed that M.O.1 is dark violet colour bag and M.O.2 to 6 are the samples and M.O.7 is the same motorcycle.

13.Similarly, P.Ws 2 and 3 have also deposed in corroboration to P.W.1 stating that they proceeded to Devi Bomma junction on 31.5.2016 on the instructions of their Tahsildar in the early morning between 2.20 a.m, and 2.30 a.m, by which time two S.Is, one doctor/P.W.1 and one constable were present and also two persons with a pulsar motorcycle bearing No. AP 31 BW 11 2673 with bag, and also revealed that on enquiring the names of those two persons and upon their confession a mediatornama was prepared at Devi

Bomma Junction and later they seized 6 K.Gs of ganja from A.1 and A.2 by weighing the same through P.W.4 by drawing samples of 100 grams each from each packet and also regarding their confession about two other persons at RTC complex and also proceeding to RTC complex and finding two more persons at RTC complex ie., A.3 and A.4 and seized 4 K.Gs of two packets with 2 K.Gs each ganja, drawing of samples and conducting another mediators report at RTC complex in their presence by P.W.1 and also handing over the accused to the S.I of Police, after drawing samples and seizure of the same.

14.P.W.4 is the weighing person. According to him he was called by S.Kota Police through one constable on 31.5.2016 at about 3.00 a.m, to Devi Bomma Junction and by the time he reached there, two VROs, one constable, two Sub Inspectors of Police, one Doctor and two accused were present with one bag consisting of three packets ie., M.O.1 and he weighed the same and each packet was weighing about 2 K.Gs, and he has taken samples of 200 grams each from each packet and separated into 100 grams each, and thereafter the signed slips were affixed to the sample packets by the raiding party, and from there at about 04.00 a.m., they all went to S.Kota, RTC Complex, there also two more accused were present with one black bag with two packets of ganja and he weighed the same, which was consisting of 2 K.Gs approximately from which he has also drawn samples of 200 grams from each packet and separated it into 100 grams each and the signed slips were affixed by the police party to the sample packets and he identified the two persons found at Devi Bomma Junction and

RTC Complex, but he stated that there are three persons in the Court hall.

During cross-examination he stated that he acted as weighing person in 12 ten to fifteen cases of NDPS, and he was not given any written requisition and he stated before police as in Ex.D.2 that the police came to him on 31.05.2016 early morning at 03.45 hours, and he did not sign on any of the reports or sample packets nor given any weighing slip to the police and denied the other suggestions.

15.According to P.W.5 who is PC No.311 of S.Kota Police station, he followed the Sub Inspectors of Police/Ravi Kumar and Sagar Babu respectively along with PCs 784, 276 and 2244 for vehicle checking at Devi

Bomma Junction, S.Kota, and they found two male persons on one black colour Bajaj Pulsar bike bearing No. AP 31 BW 2673 coming from Aruku side and proceeding towards Visakhapatnam, with one person possessing one zip bag in Black Jamoon colour (nerudu colour), and on stopping and searching, they found three packets of ganja each packet consisting of 2 Kgs approximately and total of 6 Kgs and by giving information that possessing ganja is an offence under the NDPS Act, by the S.I and informing about search in the presence of Gazetted officer, the S.I called the MRO and also sent intimation to P.W.1 and also sent for two mediators. Accordingly, P.Ws 2 and 3 came there and in their presence, the packets were cut and verified and found ganja in those packets with stems, leaves and flowers and upon that, they sent for a weighing person ie., P.W.4 who came there with a electronic weighing machine and upon enquiry by P.W.1, one person revealed his name as Aganthabudi Ganapathirao/A.1 and confessed about the offence that to earn more money he asked one Satyam for supplying ganja, who brought one person from Bihar namely some Singh on 30.5.2016 around 10.30 a.m, who gave Rs.5,000/- towards advance for 10 Kgs of ganja, then he along with Suneel Kumar/A.2 and Balaraju/A.3 went to Paduva area and procured 10 Kgs of ganja @ Rs.2,000/- per K.G from one unknown person, they packed those 10 Kgs of ganja into 5 packets of each into 2 Kgs wrapped 13 with Brown colour tape, kept three packets in one bag and other two packets in one black colour shoulder bag and brought them to Aruku Bus Stand, gave two packets in the black colour shoulder bag to A3 and A4, asked them to go to S.Kota RTC bus stand and wait for them and they kept the remaining three packets in the black jamoon colour bag, himself and A.2 started at Aruku at about 01.00 AM on 31.05.2016 and reached Devi Bomma Junction, S.Kota on their black colour Pulsar bike and were caught by the police. On enquiry, the second person also revealed his name as Suneel Kumar/A2 and also revealed similar to A.1. On that, P.W.1 got weighed the ganja through the weighing person, drawn two samples of 200 grams from each packet and got separated them into 100 grams each for sending to court and also to FSL, obtained the signatures of the mediators, Gazetted Officer, Sub Inspector of

Police, accused and affixed them to the sample packets and prepared one mediators report under Ex.P.1 in which P.Ws 1, 2, 3 and the two accused have signed and basing on the information given by the accused, they all proceeded to the RTC complex, S.Kota and there they caught two persons, who tried to skulk away on seeing the police with black colour shoulder bag in their possession and on their enquriy they revealed their names as

Balaraju/A3 who stated that he follows the instructions of A1/Ganapathirao and that A1 and A2 gave them the above ganja and asked them to wait at the Bus Stand to give the remaining ganja. When the second person was also enquired, he does not know Telugu, then, PC 2244/LW8 who knows Hindi has enquired him and he revealed that he belongs to Bihar State and came to

Araku as ganja is available at cheaper rate, in order to purchase the same at lesser price and sell it at his place for more price, asked one Satyam for ganja who introduced him some person for providing ganja and gave the bag with ganja at Aruku Bus Stand promising that he will provide the remaining ganja if he waits at S.Kota Bus stand by giving the assistance of one 14

Balaraju/A3 and when they are waiting at the Bus Stand, S.Kota, they were caught by the police.

16. P.W.5 further revealed that upon opening the bag they found two ganja packets wrapped in brown colour tape which weighed 2 K.gs each by the weighing person, total 4 Kgs and they have drawn samples of 100 grams from each packet for chemical analysis and to court and another mediators report was prepared at the RTC complex, S.Kota under Ex.P.3 which was signed by the Sub Inspectors, two mediators, accused and P.W.1 and

M.O.1 is the same bag seized by the police at Devi Bomma junction and M.Os 2 to 6 are the samples which bear the signatures of the Sub Inspectors of

Police, accused, two VROs and PW1, and M.O.7 is the same motorcycle seized. During cross-examination he revealed that it is not mentioned in

Ex.P.1 in whose possession the bag was found and he does not remember which constable went to give requisition to P.W.1 and also does not remember the numbers given to the samples and there are no serial numbers to M.Os 2 to 6 and also no signature of the translator on Ex.P.3. He denied the suggestion that he is deposing false without any seizure or raid.

17.P.W.6 is another constable who also revealed similar to

P.W.5 and according to him he translated the contents revealed by Sujit

Sing/A.4 at the RTC Complex, S.Kota as he does not know Telugu and further revealed that the bag was in the possession of Sujit Singh/A.4. During cross- examination he further stated that it is not mentioned in Ex.P.3 that he enquired A.4 in Hindi and he did not mark the signature as translator on

Ex.P.3 nor it is mentioned in Ex.P.3 that he has translated whatever stated by

A.4 from Hindi to Telugu and there are no punch slips on M.O.1 and he did not mark his signature either in Ex.P.1 or in Ex.P.3 or on any of the sample packets ie., M.Os 2 to 6 and he denied the suggestion that he is deposing false at the instance of his superior officers.

15

18.P.W.7-B.Sagar Babu, S.I of Police, has deposed that on receipt of information about transportation of ganja on 31.5.2016 at 2.30 a.m, he accompanied the Sub Inspector/Ravi Kumar along with four police constables and while conducting vehicle checking at Devi Bomma Junction,

S.Kota, they found the accused Nos 1 and 2 coming on motorcycle bearing

No. AP 31 BW 2673 from Aruku and proceeding towards Visakhapatnam via

S.Kota, by stopping them when enquired by the S.I, they revealed that there is ganja in their possession in black jamun colour bag and on that the Sub

Inspector of Police has sent for the Gazetted Officer ie., P.W.1 through requisition and after the Gazetted Officer reaching the spot, the accused themselves opened the bag and shown the contents and on enquiry by separating them by P.W.1 they confessed about the offence, in the presence of weighing person and also the mediators. A mediators report was got prepared by P.W.1 on which three constables, himself, S.I of police, P.Ws 1 to 3 and the accused have signed and the samples were also taken which also bear their signatures and thereafter they proceeded to RTC complex, S.Kota as per the information given by A.1 and there also they found two persons trying to skulk away on seeing the police jeep, possessing one black colour bag. They caught them upon identification by A.1 as the same persons, to whom he gave two packets and upon search they found two packets each consisting of 2 K.Gs total 4 K.Gs and upon enquiry by separating them, they revealed their identity as Balaraju/A.3 and revealed similar to A.1 and also the fourth person has revealed his name as Sujit Singh/A.4 and he is resident of Bihar State and came to Araku for ganja as the same is abundantly available in Araku area, and revealed similar to A.1 in Hindi which was translated by P.W.6/PC 2244, who knows Hindi. Accordingly another mediators report was prepared by P.W.1 under Ex.P.3 as revealed by A.3 and

A.4 at RTC complex and he also signed on the said report along with the S.I, 16

P.Ws 1 to 3 and the accused and he also identified his signatures on the mediators report as well as the samples on M.Os 5 and 6 and he identified the three persons present in the court hall among the persons caught on that day and further revealed that the other S.I has informed the reasons for their arrest and took them to the police station and he registered the FIR basing on

Ex.P.1 and handed over the accused, case property and other documents to the Inspector of Police for further investigation. During cross-examination he revealed that it is not mentioned in Ex.P.1 that they received secret information on 31.5.2016 and also not mentioned in Ex.P.1 that A.1 and A.2 were stopped at Devi Bomma Junction along with their bag and also not mentioned about A.1 and A.2 giving their consent for search and further revealed that there are punch slips affixed to M.Os 1 and 7 and that M.Os 5 and 6 seized as per Ex.P.3 do not bear the signatures of A.3 and A.4 and no date is mentioned underneath the signatures of the S.I and also there is no signature of the translator in Ex.P.3 and denied the other suggestions.

19.P.W.8 who is the Sub Inspector of Police who conducted the raid upon receiving information has revealed similar to P.W.7 and further stated that he proceeded to Devi Bomma junction along with P.W.7 and four constables by making a G.D. entry and during vehicle checking intercepted two male persons with a bag/M.O.1 upon that he sent requisition to P.W.1 with a request to attend the spot and after P.W.1 arrived and revealed his identity to both the male persons and giving notice to them for their consent, which was acknowledged by both the persons, P.W.1 has secured the presence of two mediators ie., P.Ws 2 and 3 and also the weighing person ie., P.W.4, separated those persons and enquired the first person who revealed his name as Aganthampudi Ganapathirao and revealed about the offence and stated similar to P.W.1 and other witnesses. He further deposed that upon weighing the ganja through P.W.4 by P.W.1 one packet was containing 2.055 17 kgs, the second packet containing 1.9 kgs of ganja, and the third packet was containing 2.1 kgs of ganja to which PW1 has allotted numbers as 1 to 3, got the samples of 200 grams each from each packet, separated them into 100 grams each and numbered them as 1A, 1B, 2A, 2B, 3A, 3B, and prepared a mediators report under Ex.P.1 and seized the samples and bag and upon the confession of A.1 and A.2 they proceeded to the RTC complex and found two persons trying to skulk away with a bag in possession of one person and on enquiry they also revealed their names as Mattam Balaraju/A3 and Sujit

Singh/A.4 and A.4 further revealed that he came to Araku for purchase of ganja and to sell it at higher price in Bihar and met one Satya who is friend of

A.1 and A.2 and asked him for ganja by giving advance of Rs.5,000/-, upon which Satya has introduced the accused nos 1 to 3 to A.4 who told that he will give the remaining amount after handing over the ganja at S.Kota, RTC

Complex. Accordingly, they procured 10 K.gs of ganja, got it packed into five packets and separated and kept three packets in one bag and two packets in another bag. A1 and A2 have asked A3 and A4 to wait at S.Kota RTC

Complex, so that they can hand over the remaining ganja to A3 and A4. A4 has kept the black colour bag with two packets with him, whereas A1 and A2 have kept the other three packets with them, and the same was stated by A.4 in Hindi which was translated into Telugu by P.W.6 and by conducting search of the bag with A.4 they found two packets of each 2 K.Gs from which they have drawn samples of 200 grams each and separated into 100 grams each and numbered as 4A, 4B and 5A, 5B, affixed slips with the signatures of himself, PW1, two mediators, accused Nos 3 and 4 to the sample packets and prepared another mediators report at RTC complex, S.Kota, seized the contraband bag and samples through P.W.1 which was handed over by P.W.1 to P.W.8 and A.3 and A.4 have signed on the mediators report and also on the sample slips along with himself, P.W.7, P.Ws 1 to 3 and basing on the first 18 mediators report under Ex.P.1 he registered a case in Crime No.140/2016

U/Sec.8(c) r/w 20(b)(ii) of NDPS Act, S.Kota Police station and issued FIR under Ex.P14 and sent the same to the concerned court and all the concerned and also informed to the Inspector Of Police, S.Kota circle and he identified the signatures, samples and the motorcycle as M.Os 1 to 7 and also identified the three persons out of the four accused in the court hall. During cross-examination he stated that he does not know whether the G.D. entry is produced in the court or not and that he did not file the requisition sent to

P.W.1 in the court and further stated that it is not mentioned in the mediators report that the accused were issued with notice and they acknowledged the same prior to conducting the search and admitted that in the first page of

Ex.P.1 at second para, 4th line the number of bike is mentioned as Bajaj pulsar bike as AP 31 BW 2672, and that M.O.1 does not bear any signed chits with the signatures of the mediators, accused and the police team and that he does not know whether the second bag seized from A.3 and A.4 was produced before the court or not and the samples seized at RTC complex do not bear the signatures of A.3 and A.4 but bear the signatures of A.1 and A.2 and all the samples bear the signatures of A.1 and A.2, and Ex.P.3 does not show the signature of the translator ie., P.W.6 and there are no identification marks/numbers found on M.Os 2 to 6 and that at column No.9 of the FIR the bike number was not mentioned and also admitted regarding mentioning of time of receiving information and catching A.1 and A.2 and denied the other suggestions.

20.According to P.W.9 he conducted further investigation in this case on receipt of information at 7.00 a.m, when he was present at the Circle

Office, regarding registration of FIR in Cr.No./140/2016 under Sec.8(c) r/w 20(b)(ii) of the NDPS Act of S.Kota Police Station. He took up investigation, secured A.1 to A.4 and also P.Ws 1 and 4 and recorded the statements of P.Ws 19 1 and 4 and also visited the scene of offence at Devi Bomma Junction and prepared rough sketch under Ex.P.15 and also visited the second scene of offence at RTC complex, S.Kota and drawn rough sketch under Ex.P.16 and thereafter produced A.1 to A.4 before the concerned and sent the material objects to Excise Laboratory, Visakhapatnam under letter of advice through the SDPO, Vizianagaram under Ex.P.17 and also filed the requisition given to

P.W.1 which is marked as Ex.P.18 and filed preliminary charge sheet in this case. During cross-examination he admitted that the time of vehicle checking is mentioned as 3.15 a.m, on 30.1.2016 in the statement of P.W.1 recorded by him and he did not file the consent letter obtained by P.W.1

before searching the vehicle of the accused and the time of weighing the

ganja was mentioned as 3.45 a.m. (Ex.D.2) in the statement of P.W.4, he did not examine the RTC staff or outsiders in the complex as witnesses which is located in busy area and denied the other suggestions and further stated that

Ex.P.8 is true carbon copy while the original is handed over to P.W.1 and admitted regarding over writing in the covering letter under Ex.P.17.

21.P.W.10 is the second Investigation Officer, who forwarded the seized property by taking the CD file from P.W.9 for inventory before the concerned Magistrate and according to him Ex.P.19 is the memo filed before the court concerned and Ex.P.20 is the inventory report sent by the JFCM,

S.Kota and further testified that he verified the FSL report before filing the charge sheet which is Ex.P.21 as per which, the sample was analysed as ganja in “Fast blue B Salt Test: Positive” and Ex.P.22 is the letter of intimation sent by P.W.9 to the Superintendent of Police, Vizianagaram regarding registration of FIR in this crime and later he filed charge sheet in this case on completion of investigation. During cross-examination he further stated that in Ex.P.20 it is mentioned as three packets consisting of 10 K.Gs and the packet contents are mentioned as 8.680 K.Gs at column No.2 of the Inventory 20 report and further stated that due to lapse of time the dry ganja evaporates and also stated that in Annexure-I the place of seizure is mentioned as Devi

Bomma Junction, S.Kota and the second scene of offence is not mentioned in annexure-I and that it is mentioned in Ex.P.21 that from the Inspector of

Police, S.Kota circle with his letter dated 28.5.2016 and denied the suggestion that he filed the charge sheet without conducting proper investigation, never sent the samples for chemical analysis and also P.W.1 never sent Ex.P.22 to their superior officers.

22.The contention of the learned defense counsel is that there is no corroboration and consistency between the evidence of the prosecution witnesses and there are many discrepancies in their evidence with regard to the time, seizure of contraband, finding the accused, possession of the bag and the prosecution evidence suffers non service of notice to the accused which is mandatory under Sec.50 of the NDPS Act, and the person who allegedly translated the version of A.4 has never signed as translator on

Ex.P.3 mediators report and there is no signature of the person who scribed the mediators reports and the number of police constables who allegedly accompanied P.Ws.7 and 8 is also doubtful since according to P.W.2 only one constable accompanied them whereas P.W.3 has stated that four constables have accompanied for the raid and there are many discrepancies in the evidence of the prosecution witnesses and the prosecution has utterly failed to prove the guilt of the accused in view of the admissions made by the prosecution witnesses and not following the due procedure by the concerned police and also the discrepancies of time and also P.W.1 not taking the permission of his superior authority before proceeding to the scene of offence.

23.Per contra, the contention of the learned Special Public

Prosecutor is that despite some discrepancies in the evidence of the 21 prosecution witnesses with regard to the time and other aspects, the evidence of P.Ws 1 to 10 clinchingly established the prosecution case and since the contraband was seized not from the possession of the accused but only from the bag contained in the possession of the accused and as such, issuance of Sec.50 notice is not mandatory and due to lapse of time and long gap between the date of registration of the crime ie., 31.5.2016 and the witnesses deposing before the court in the year 2023 there is possibility of fading away the memory of the witnesses and that cannot be a ground to suspect the prosecution case and the guilt of the accused is proved by the prosecution through P.Ws 1 to 10 and Exs.P.1 to P.22 and M.os 1 to 7. The learned Special Public Prosecutor has also submitted some rulings in support of his contention with regard to Sec.50 notice as follows:-

(i) In the case of THE STATE OF PUNJAB VS. BALDEV SINGH ETC.

reported in 1999 (6) Supreme 159, the Larger Bench of the Hon’ble

Supreme Court of India consisting of five Judges observed that “Right of accused to be informed that he is entitled to be searched in the presence of

Magistrate or Gazetted officer, and Sec.50 would come into play only in case

of search of a person, and if search is made without prior information as contemplated under Sec.42 during normal investigation, requirement of section not attracted.

(ii)In the case of STATE OF HARYANA VS. JARNAIL SINGH AND

OTHERS reported in 2004 (3) Crime (SC) 25, the Hon’ble Supreme Court has observed that “in the facts of this case Section 50 of the NDPS Act was not applicable since the contraband was recovered on search of a vehicle and there was no personal search involved. The requirement of the proviso to

Sec.42 was also not required to be complied with since the recovery was made at a public place and was, therefore, governed by Sec.43 of the Act, which did not lay down any such requirement. Additionally, since the 22

Superintendent of Police was a member of the search party and was exercising his authority under Sec.41 of the NDPS Act, the proviso to Sec. 42 were not attracted.

(iii)In the case of STATE OF HIMACHAL PRADESH VS. PAWAN KUMAR reported in 2005 (3) Supreme 321, the Hon’ble Supreme Court has observed that “the provisions of Sec.50 NDPS Act, will come into play only in case of personal search of the accused and not some some baggage like a bag, article or container etc., which he may be carrying”.

(iv) In the case of RUPDHAR MURIA VS. STATE OF ORISSA reported in 2016 0 Supreme (Ori) 193, the Hon’ble Supreme Court has observed that

Sec.50 is applicable only when there is search of person of the accused, but the section is not applicable in respect of search of premises, vehicles, bags, articles or any other respective articles.

(v)In the case of RAJESH DHIMAN VS. STATE OF HIMACHAL PRADESH

reported in 2020 (7) Supreme 74 equivalent to 2020 0 Supreme (SC)

628, the Hon’ble Supreme Court has observed that “Non examination of independent witnesses would not ipso facto entitle one to seek acquittal”.

In the present case, even though the raiding team found ganja in the bag which is in possession of the accused, they endeavoured to secure the presence of P.W.1 who is working as Superintendent, Community

Health Center, S.Kota and a Gazetted Officer, who came to the spot and introduced himself to the accused and with their consent only he in the presence of mediators viz., P.Ws 2 and 3 searched the bag and found ganja in it. But, the prosecution has not filed any notice said to have been served on the accused intimating their right to be searched before Gazetted Officer or a

Magistrate. Simply because no such notices are filed before the court, it is

not a ground to vitiate the entire case of the prosecution, since, as per the dictum laid down in the above rulings, Sec.50 of the NDPS Act is not 23 applicable when the search is in respect of bags etc., and in the present case, the ganja was found in the bag that was in the possession of the accused and as such, the provisions of Sec.50 of the NDPS Act, are not applicable to the present case. Therefore, the above rulings submitted by the learned

Special Public Prosecutor are aptly applicable to the facts and circumstances of the case.

The learned Special Public Prosecutor has also submitted the ruling in the case of MAKHAN SINGH AND ANOTHER VS. STATE OF

PUNJAB reported in 2006 0 Supreme (P&H) 3000, where there can be presumption of culpable mental state as contemplated under Sec.35, and as per Sec. 54 of the Act, with regard to presumption of possession of a narcotic drug. Therefore, in view of the rulings submitted by the learned Special

Public Prosecutor there is nothing to disbelieve or distrust the evidence of

P.Ws 7 and 8 only because they are official witnesses. Further, when the contraband is recovered not from the possession of the accused but from the belongings of the accused, it cannot be said that issuance of Sec.50 of the

NDPS Act, is mandatory and not followed. Even though it is admitted by P.Ws 1 and 9 that no notice was issued to the accused u/sec.50 of the Act, it is not mandatory when the contraband is recovered from the belongings of the accused as held by the Hon’ble Supreme Court in 2004 (3) Crimes 25 (SC) that Sec.50 of the Act, is not applicable when the contraband is recovered by search of a vehicle and there is no personal search involved”. The learned

Special Public Prosecutor has also submitted a ruling in the case of STATE OF

RAJASTHAN VS. SAHI RAM reported in 2019 Supreme (SC) 1082,

wherein the Hon’ble Supreme Court has observed that non production of the contraband material before the court by itself is not sufficient to grant benefit of acquittal.

24

24.The learned defense counsel also submitted the following rulings in support of his contention.

(1) in the case of MANGILAL VS. STATE OF MADHYA PRADESH reported in 2023 ALL SCR (ONLINE) 591.

(2) in the case of VIJAY PANDEY VS. STATE OF UTTAR PRADESH reported in 2019(2) ALD (Crl) 604 (SC).

(3) in the case of STATE OF RAJASTHAN VS. GURMAIL SINGH reported in 2005 Cri.L.J.1746.

Even though it is contended by the learned defense counsel by pointing out the discrepancy with regard to the time etc., in the evidence of the prosecution witnesses it is pertinent to note that P.Ws 1 to 8 have categorically deposed in their evidence with regard to receipt of information by P.W.8 about transportation of ganja on 31.5.2016 and conducting vehicle checking by P.Ws 7 and 8 with the help of raiding team ie., P.Ws 5 and 6 constables and also by intimating to P.W.1, who is the Superintendent,

Community Health Center, S.Kota who acted as Gazetted Officer in this case.

P.W.1 has also categorically deposed regarding the intimation received from the police and also finding the accused with the police at Devi Bomma junction, S.Kota along with a bag, upon coming there and his sending word for two VROs and their presence and conducting search and seizure in their presence by calling the weighing person ie., P.W.4 and drawing samples of 200 grams each from three packets found in the bag found in the possession of A.1 and A.2 by separating them and also conducting first mediators report at Devi Bomma junction and also proceeding to RTC complex upon the information furnished by A.1 and A.2 regarding the other two packets of ganja given to A.3 and A.4 and asking them to wait at RTC complex in order to handover the remaining three packets by keeping with them. The weighing person who is examined as P.W.4 has also corroborated the 25 evidence of the prosecution witnesses ie., P.Ws 1 to 3 and also P.Ws 7 and 8 with regard to weighing the contraband found in the possession of A.1 and

A.2 at Devi Bomma junction and drawing samples and also proceeding to RTC complex and weighing the contraband found with A.3 and A.4 and drawing samples and conducting two mediators reports under Exs.P.1 and P.3 at Devi

Bomma junction as well as RTC complex.

25.(i) Even though some minor discrepancies are pointed out by the learned defense counsel, the learned defense counsel has failed to explain as to how the accused are found while conducting vehicle checking at

Devi Bomma junction as well as RTC complex. Further, no enemity is suggested to the prosecution witnesses by the learned defense counsel to implicate the accused falsely in this case. Further, the contraband which was seized and sent for chemical analysis is analysed as ganja as per the chemical examiner’s report and even though it is suggested to the prosecution witnesses that no such search or seizure was conducted and the accused were falsely implicated in this case, no suggestion regarding enemity is pointed out to implicate the accused in this case. Further, the rulings as filed by the learned defense counsel do not apply to the facts and circumstances of this case since in the ruling filed by the learned defense counsel reported in 2023 ALL SCR (ONLINE) 591 in MANGILAL VS.

STATE OF M.P. that “non production, disposal of seized materials, not explained in the police officer’s testimony and existence of the very same materials in the police station even before occurrence destroys the prosecution case and the accused was acquitted in that case”. In the present case, there is no such occasion for the availability of the material in the police station even before the occurrence of the offence and there is no suggestion in that regard to the prosecution witnesses and it is not the defense raised by the learned defense counsel.

26

(ii)Further, the second ruling reported in 2019 (2) ALD (Crl) 604 (SC) that “failure of prosecution to relate the seized sample with that seized from the accused, and acquittal of the accused/appellant in that case does not cover the facts of this case, since there is no such suggestion or proof that the accused are not concerned with the sample seized from the accused since the material objects in this case also contain the signatures of the accused along with the mediators report.

(iii) The third ruling reported in 2005 Cri.L.J.1748 in the case of STATE OF RAJASTHAN, VS GURMAIL SINGH, that “Malkhana register was not produced in evidence to prove that the seized articles were kept in Malkhana, and no sample of seal was sent along with the sample to excise laboratory for the purpose of comparing with the seal appearing on sample bottles, no evidence to prove satisfactorily that seals found were in fact same seals as were put on sample bottles immediately after seizure of contraband, acquittal of the accused, proper”. This ruling also is not applicable since the samples seized bear the signatures of accused Nos 1 and 2 including the mediators report. There is no such suggestion on possibility of tampering the seals sent to chemical analysis.

(iv) Therefore, the rulings as submitted by the learned defense counsel do not apply to the facts and circumstances of this case.

But, however, the complicity of A.1 and A.2 is very much established in the prosecution evidence since according to P.Ws 1 to 3 and 5 to 8 they consistently and categorically deposed about finding the accused Nos 1 and 2 at the time of conducting vehicle checking and conducting mediators report at Devi Bomma junction and seizure of contraband and drawing of samples by calling the weighing person P.W.4. The mediators report which was conducted at the first instance under Ex.P.1 not only consists of the signatures of the accused and the samples under M.Os 2 to 4 also contain the 27 signatures of A.1 and A.2. Therefore, the involvement of A.1 and A.2 and finding them red handed while in possession of 6 K.Gs of ganja while transporting the same at Devi Bomma Junction, S.Kota and also regarding the seizure conducted at that place by the prosecution team cannot be doubted in view of the evidence of P.Ws 1 to 8.

26.With regard to the involvement of A.3 is concerned, even according to the evidence of the Sub Inspector ie., A.3 was asked by A.1 to assist A.4 and except stating that as per the instructions of A.1 he accompanied A.4 who is the main culprit in this case, there is no seizure of contraband from A.3 and the presence of A.3 is doubtful in view of the evidence of P.Ws 7 and 8/Sub Inspectors of Police in this case and also in view of the fact that though his signature was found on the mediators report, the samples under M.Os 5 and 6 do not bear bear the signature of A.3 which connects A.3 with the contraband allegedly seized under Ex.P.3. Therefore, the presence of A.3 and his involvement is doubtful. P.W.6 also categorically deposed in his chief evidence that as the said Sujit Singh/A.4 which clearly proved that A.3 was asked to accompany A.4 who is the main culprit in this case as A.4 is not acquainted with the area.

27.Therefore, in view of my discussion and findings, I am of the opinion that the prosecution is able to establish its case against the accused

Nos 1 and 2 only and failed to establish the guilt against accused No.3 for the offence punishable under Sec. 8(c) r/w 20(b)(ii)(B) of the NDPS Act.

Accordingly, the accused Nos 1 and 2 are liable for punishment for the said offence as the prosecution has followed the mandatory procedure contemplated under the NDPS Act, whereas the accused No.3 is entitled for acquittal under benefit of doubt. Hence, this point is answered accordingly.

28.IN THE RESULT, the accused Nos 1 and 2 are found guilty for the offence punishable under sec.8(c) r/w 20(b)(ii)(B) of the NDPS Act, 28 1985, and accordingly they are convicted under Sec.235 (2) Cr.P.C, for the said offence.

The accused No.3 is found not guilty for the offence punishable under sec.8(c) r/w 20(b)(ii)(B) of the NDPS Act, 1985, and accordingly he is acquitted under Sec.235 (1) Cr.P.C, for the said offence.

The accused No.3 is directed to execute personal bond under Sec.437-A

Cr.P.C.

Dictated to the Stenographer Grade-I transcribed by him

corrected and pronounced by me in open court on this the 28 th day of June, 2024.

Sd/- G. RAJANI

SPECIAL JUDGE FOR TRIAL OF CASES UNDER

N.D.P.S. ACT- CUM-I ADDITIONAL DISTRICT

AND SESSIONS JUDGE, VIZIANAGARAM.

29.On questioning the quantum of sentence, the accused No.1 has submitted that he does not know anything about this case, and he has got old aged parents and also children who are dependent on him. Further, the accused No.2 has also submitted that he does not know anything about this case, and he has got old aged parents and also children who are dependent on him. But, the submissions made by the accused Nos 1 and 2 cannot be considered as the case of the prosecution is proved through the evidence of the prosecution witnesses and since the offence alleged is against the interest of the society, no lenient view can be taken.

30.(i)Therefore, the accused No.1 is sentenced to

UNDERGO RIGOROUS IMPRISONMENT for a PERIOD OF 5 (FIVE)

YEARS and also to pay fine amount of Rs.20,000/- (Rupees: Twenty

Thousand only) and in default of payment of fine amount, he shall

UNDERGO SIMPLE IMPRISONMENT FOR SIX MORE MONTHS for the offence punishable under Sec. 8(c) r/w 20(b)(ii)(B) of the N.D.P.S.Act.

29

(ii)Further, the accused No.2 is sentenced to UNDERGO

RIGOROUS IMPRISONMENT for a PERIOD OF 5 (FIVE) YEARS and also to pay fine amount of Rs.20,000/- (Rupees: Twenty Thousand only) and in default of payment of fine amount, he shall UNDERGO SIMPLE

IMPRISONMENT FOR SIX MORE MONTHS for the offence punishable under Sec. 8(c) r/w 20(b)(ii)(B) of the N.D.P.S.Act.

31.M.Os.1 to 6 shall be kept in safe custody as the case against accused No.4 who is the main culprit in this case is pending by splitting up in view of his absconding and M.O.7 shall be confiscated to the

State after the expiry of appeal time as A.4 is no way concerned with M.O.7 and only A.1 and A.2 were found while travelling on M.O.7. The rest of the case property shall be preserved till A.4 is arrested and trial against A.4 is completed in NDPS SC 7/2023.

32.The period of detention already undergone by the accused

Nos 1 and 2 , if any, shall be given set off under Sec.428 Cr.P.C.

Dictated to the Stenographer Grade I transcribed by him corrected and

pronounced by me in open court on this the 28 th day of June, 2024.

Sd/- G. RAJANI

SPECIAL JUDGE FOR TRIAL OF CASES UNDER

N.D.P.S. ACT- CUM-I ADDITIONAL DISTRICT

AND SESSIONS JUDGE, VIZIANAGARAM.

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution:-For Defence:-NONE P.W.1 : Rayavarapu Dilip Kumar, (Gazetted Officer)

P.W.2 : Tammiraju Venkata ATchutaramaiah, (VRO)

P.W.3 : Mahisarla Jaganmohanarao (VRO)

P.W.4 : Doni Janardhanarao (weighing person)

P.W.5 : Tamada Venkata Ramana (Police constable)

P.W.6: E.Ramnaidu (Police Constable)

P.W.7: B.Sagar Babu (S.I of Police)

P.W.8: Kaviti Ravi Kumar (S.I of police)

P.W.9: S.laxmana Murthy (Inspector of Police)

P.W.10: B.Ramana Murthy (Inspector of Police) 30

Exhibits Marked

For Prosecution:- Ex.P.1First Mediators report dated 31.5.2016 drafted at 3.00 hours Ex.P.2Signature of P.W.1 on Ex.P.1 Ex.P.3Second Mediators report dated 31.5.2016 drafted at 4.45 hours Ex.P.4Signature of P.W.1 on Ex.P.3 Ex.P.5Signature of P.W.2 on Ex.P.1 Ex.P.6Signature of L.W.2 on Ex.P.1 Ex.P.7Signature of P.W.2 on Ex.P.3 Ex.P.8Signature of L.W.2 on Ex.P.3 Ex.P.9Signature of P.W.7 on Ex.P.1 Ex.P.10 Signature of P.W.7 on M.Os 2 to 4 Ex.P.10-A Signature of P.W.7 on M.Os 5 and 6 Ex.P.11 Signature of P.W.7 on Ex.P.3 Ex.P.12 Signature of P.W.8 on Ex.P.1 Ex.P.13 Signature of P.W.8 on Ex.P.3 Ex.P.14 Original FIR in Cr.No.140/2016 of S.Kota Police Station Ex.P.15 Rough sketch of the first scene of offence (Devi bomma junction, S.Kota) Ex.P.16 Rough sketch of the second scene of offence (RTC complex, S.Kota) Ex.P.17 Original covering letter Ex.P.18 Copy of letter/Requisition sent to P.W.1 by P.W.7 Ex.P.19 Memo filed before JFCM, S.Kota Ex.P.20 Inventory report Ex.P.21 FSL report Ex.P.22 Letter of intimation sent by P.W.9

For Defence:- Ex.D.1/:Marked portion in Sec.161 Cr.P.C. statement of P.W.1 Ex.D.2/: Marked portion in Sec.161 Cr.P.C. statement of P.W.4

Material Objects Marked

M.O.1 : Dark violet colour bag M.Os 2 to 6 : Sample packets M.O.7: Motorcycle bearing No. AP 31 BW 2673

Sd/- G. RAJANI

SPECIAL JUDGE FOR TRIAL OF CASES UNDER

N.D.P.S. ACT- CUM-I ADDITIONAL DISTRICT

AND SESSIONS JUDGE, VIZIANAGARAM.

Copy submitted to the Hon’ble Registrar (Judicial), Hon’ble High Court of Andhra Pradesh at Amaravathi, Nelapadu (by way of C.D.). Copies Communicated to :

1. The Special Public Prosecutor, Vizianagaram.

2. The District Collector, Vizianagaram.

3. The Superintendent of Police, Vizianagaram

4. The SHO, S.Kota P.S.

31

IN THE COURT OF SPECIAL JUDGE FOR TRIAL OF CASES UNDER NDPS ACT

CUM I ADDITIONAL DISTRICT & SESSIONS JUDGE, VIZIANAGARAM.

Present:- Smt.G. RAJANI,

Special Judge for trial of cases under NDPS Act-cum-

I Additional District & Sessions Judge, Vizianagaram

Friday, this the 28th day of June, 2024

N.D.P.S. SESSIONS CASE No. 48 of 2016

01Name of the complainant:State represented by the Inspector of Police, S.Kota circle 02Name of the accused:1. Aganthabudi Ganapathi Rao @ Ganesh, S/o. Dharmarao, 26 years, ST Valmiki, Korra village, Dumbriguda mandal of Visakhapatnam district.

2. Agathambidi Suneel Kumar, S/o. Bujjayya, 20 years, St Valmiki caste, Korra village,Dumbrigudamandalof Visakhapatnam district.

3. Mattam Balaraju, S/o. Late Keswarao, 21 years, ST Bagatha caste, Kosangi village, Dumbriguda mandal of Visakhapatnam district.

4. Sujit Singh (case against A.4 is

separated)

03Date of offence:31.05.2016 04Place of offence:At Devi Bomma junction and RTC complex, S.Kota 05Date of complaint:31.05.2016 06Date of Commitment:– 07Date of apprehension of28.11.2016 accused in this Court 08Whether the accused are inAccused Nos 1 to 3 are on bail. jail or on bail:

09Date of commencement of03.01.2024 trial:

10Date of closure of trial.27.05.2024 11Date of sentence or28.06.2024 Judgment:

12.Sentence or order The accused Nos 1 and 2 are found guilty for the offence punishable under sec.8(c) r/w 20(b)(ii)(B) of the NDPS Act, 1985, and accordingly they are convicted 32 under Sec.235 (2) Cr.P.C, for the said offence, and accordingly, the accused No.1 is sentenced to UNDERGO RIGOROUS IMPRISONMENT for a PERIOD OF 5 (FIVE) YEARS and also to pay fine amount ofRs.20,000/- (Rupees: Twenty Thousand only)and in default of payment of fine amount, he shall

UNDERGO SIMPLE IMPRISONMENT

FOR SIX MORE MONTHS for the offence punishable under Sec. 8(c) r/w 20(b)(ii)(B) of the N.D.P.S.Act. Further, the accused No.2 is sentenced toUNDERGO RIGOROUS IMPRISONMENT for a PERIOD OF 5 (FIVE) YEARS and also to pay fine amount of Rs.20,000/- (Rupees: Twenty Thousand only) and in default of payment of fine amount, he shall

UNDERGO SIMPLE IMPRISONMENT

FOR SIX MORE MONTHS for the offence punishable under Sec. 8(c) r/w 20(b)(ii)(B) of the N.D.P.S.Act.

M.Os.1 to 6 shall be kept in safe custody as the case against accused No.4 who is the main culprit in this case is pending by splitting up in view of his absconding and M.O.7 shall be confiscated to the State after the expiry of appeal time as A.4 is no way concerned with M.O.7 and only A.1 and A.2 were found while travelling on M.O.7. The rest of the case property shall be preserved till A.4 is arrested and trial against A.4 is completed in NDPS SC 7/2023.

The period of detention already undergone by the accused Nos 1 and 2 , if any, shall be given set off under Sec.428 Cr.P.C.

The accused No.3 is found not guilty for the offence punishable under sec.8(c) r/w 20(b)(ii)(B) of the NDPS Act, 1985, and accordingly he is acquitted under Sec.235 (1) Cr.P.C, for the said offence. The accused No.3 is directed to execute personal bond under Sec.437-A Cr.P.C.

33

EXPLANATION FOR THE DELAY:-

The complainant filed this case against the accused Nos 1 to 4 for the offence punishable under Sec. 8(c) r/w 20(b)(ii) of the NDPS Act, 1985, and this court being the Special Court to try the offences under NDPS Act, has taken the case on file for the said offence against the accused on 12.11.2016. Subsequently, A.4 failed to appear before this court even though NBW was issued and hence, the case against him is separated and numbered as NDPS SC 7/2023 and the present case is only tried against the accused Nos 1 to 3. On 1.8.2023, on appearance of the accused Nos 1 to 3 charge under Sec. 8 (c) r/w 20(b)(ii) (B) of NDPS Act was framed. During the course of trial, P.Ws 1 to 10 are examined, Exs.P.1 to P.22 and M.Os.1 to 7 got marked. Exs.D.1 and D.2 are marked on behalf of the accused. After closure of prosecution evidence on 25.4.2024, the accused Nos 1 to 3 were examined under Sec.313 Cr.P.C. Thereafter, arguments of both sides heard, and judgment pronounced on 28.6.2024 convicting and sentencing the accused

Nos 1 and 2, while acquitting accused No.3 as aforesaid.

Sd/- G.RAJANI

SPECIAL JUDGE FOR TRIAL OF CASES UNDER NDPS ACT

CUM I ADDITIONAL DISTRICT & SESSIONS JUDGE,

VIZIANAGARAM.

1

IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF CASES UNDER

NDPS ACT-CUM-I ADDITIONAL DISTRICT AND SESSIONS JUDGE AT

VIZIANAGARAM.

Present:- Smt.G. RAJANI,

Special Judge for trial of cases under NDPS Act-cum-

I Additional District & Sessions Judge, Vizianagaram

Wednesday, this the 10th day of January, 2024

N.D.P.S. SESSIONS CASE No. 38 of 2018

01Name of the complainant:State represented by the Inspector of Police, Vizianagaram rural circle 02Name of the accused:1. Chalumuri Gangunaidu, S/o. Late Suryanarayana, 41 years, AMG Colony, Narava village, Gantyada mandal, N/o. Denkada village, Vizianagaram district.

2. Pesala Samsun, S/o. Late Apparao, 43 years, Manchukondavari Satram, near NCS theatre, Vizianagaram.

3. Balorda Matya Lingam, S/o. Late Somanna, 40 years, R/o. Volda village and Panchayat, Hukumpeta mandal, Visakhapatnam district (absconding) 03Date of offence:19.02.2018 04Place of offence:Rakodu-Pinavemali road junction, Vizianagaram mandal and district. 05Date of complaint:19.02.2018 06Date of Commitment:– 07Date of apprehension of26.06.2018 accused in this Court 08Whether the accused are inAccused are on bail. jail or on bail: 09Date of commencement of11.07.2023 trial: 10Date of closure of trial.28.12.2023 11Date of sentence or10.01.2024 Judgment:

12.Sentence or order The accused Nos 1 and 2 are found guilty for the offence punishable under Sec. 8 (c) r/w 20(b)(ii)(C) of the NDPS Act, and accordingly they are convicted under Sec.235(2) Cr.P.C, for the said offence.

2

The accused Nos.1 and 2 are sentenced toUNDERGO RIGOROUS IMPRISONMENT for a TERM OF 15 (FIFTEEN) YEARS EACH and also to pay fine amount of Rs.1.00,000/- (Rupees: One Lakh only) each, and in default of payment of fine amount, accused Nos.1 and 2 shallUNDERGO RIGOROUS

IMPRISONMENT FOR SIX MORE

MONTHS EACH,for the offence punishable under Sec. 8(c) r/w 20(b)(ii)(C) of the N.D.P.S.Act. M.Os. 1 to 26 shall be kept in safe custody since the offence against the accused No.3 is pending and he is absconding from the date of offence and his complicity is yet to be established by the police. M.O.27 shall be confiscated to State after expiry of the appeal time. The period of detention already undergone by the accused Nos 1 and 2 if any, shall be given set off under Sec.428 Cr.P.C.

EXPLANATION FOR THE DELAY:-

The complainant filed this case against the accused Nos.1 and 2 for the offence punishable under Sec. 8(c) r/w 20(b)(ii) (C) of the NDPS Act, 1985, and this court being the Special Court to try the offences under NDPS

Act, has taken the case on file for the said offence against the accused Nos 1 and 2 on 13.6.2018 and A.3 in this case is absconding. On 28.12.2018, on appearance of the accused Nos 1 and 2 charge under Sec. 8 (c) r/w 20(b)(ii) of NDPS Act was framed by my learned Predecessor, subsequently since the quantity involved in this case is commercial quantity on 8.12.2023, this court after hearing the accused and Special Public Prosecutor, by invoking the provisions under sec. 216(2) Cr.P.C, altered the charge from Sec.8(c) r/w 20(b)(ii) NDPS Act to Sec.8(c) r/w 20(b)(ii)(C) of the NDPS Act. During the course of trial, P.Ws 1 to 9 are examined, Exs.P.1 to P.21 and M.Os.1 to 27 got marked. After closure of prosecution evidence, on 8.12.2023, the accused

Nos 1 and 2 were examined under Sec.313 Cr.P.C. Thereafter, arguments of both sides heard, and judgment pronounced on 10.1.2024, convicting and sentencing the accused Nos 1 and 2, as aforesaid.

Sd/- G.RAJANI

SPECIAL JUDGE FOR TRIAL OF CASES UNDER NDPS ACT

CUM I ADDITIONAL DISTRICT & SESSIONS JUDGE,

VIZIANAGARAM.

3

IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF CASES UNDER

NDPS ACT-CUM-I ADDITIONAL DISTRICT AND SESSIONS JUDGE AT

VIZIANAGARAM.

Present:- Smt.G. RAJANI,

Special Judge for trial of cases under NDPS Act-cum-

I Additional District & Sessions Judge, Vizianagaram

Wednesday, this the 10th day of January, 2024

N.D.P.S. SESSIONS CASE No. 38 of 2018

Name of the Complainant :State represented by the Inspector of Police, Vizianagaram rural circle

Name of the accused :1. Chalumuri Gangunaidu, S/o. Late Suryanarayana, 41 years, AMG Colony, Narava village, Gantyada mandal, N/o. Denkada village, Vizianagaram district.

2. Pesala Samsun, S/o. Late Apparao, 43 years, Manchukondavari Satram, near NCS theatre, Vizianagaram.

3. Balorda Matya Lingam, S/o. Late Somanna, 40 years, R/o. Volda village and Panchayat, Hukumpeta mandal, Visakhapatnam district (absconding)

Charges Under Section 8(c) r/w 20(b)(ii)(C) of N.D.P.S. :Act, 1985.

Plea of the accused : Accused pleaded not guilty Finding of the Judge :A.1 and A.2 are found guilty Sentence of order : The accused Nos 1 and 2 are found guilty for the offence punishable under Sec.

8 (c) r/w 20(b)(ii)(C) of the NDPS Act, and accordingly they are convicted under

Sec.235(2) Cr.P.C, for the said offence.

The accused Nos.1 and 2 are sentenced toUNDERGO RIGOROUS

IMPRISONMENT for a TERM OF 15 (FIFTEEN) YEARS EACH and also to pay fine amount of Rs.1.00,000/- (Rupees:

One Lakh only) each, and in default of payment of fine amount, accused Nos.1 and 2shallUNDERGO RIGOROUS 4

IMPRISONMENT FOR SIX MORE MONTHS

EACH, for the offence punishable under Sec.

8(c) r/w 20(b)(ii)(C) of the N.D.P.S.Act.

M.Os. 1 to 26 shall be kept in safe custody since the offence against the accused No.3 is pending and he is absconding from the date of offence and his complicity is yet to be established by the police. M.O.27 shall be confiscated to State after expiry of the appeal time.

The period of detention already undergone by the accused Nos 1 and 2 if any, shall be given set off under Sec.428

Cr.P.C. Prosecution conducted by : Sri Bellana Ravi, Special Public Prosecutor.

Defence conducted by : Sri K.B.Parameswara Rao, Advocate for the accused

This case coming on 28.12.2023 for final hearing before me in the presence of Sri Bellana Ravi, Special Public Prosecutor for the complainant/State and Sri K.B.Parameswara Rao, Advocate for the accused; and after hearing both sides and the matter having been stood over for consideration till this day, this court delivered the following :-

J U D G M E N T

1. This sessions case is registered basing on the complaint in

Cr.No.31/2018 under Sec.120-B IPC, Sec 8(c) r/w 20 (b)(ii)(C) of the NDPS Act, 1985, r/w 34 IPC, of Vizianagaram Rural Police Station for which the Inspector of Police, Vizianagaram Rural circle has investigated into and filed charge sheet against the accused Nos.1 and 2, while showing A.3 as absconding.

2.(i) As per the averments raised in the charge sheet, on 19.2.2018 at 11.30 hours, Sri P.Ramakrishna, S.I of Police, Vizianagaram rural

Police Station (Lw 12) along with his staff viz., Sri M.Krishna-HC 778, Sri

R.Ramarao-HC 1221, Sri Shaik Shafi-PC 862 and Sri S.Sai Sankar-PC 424 (LWs 5 to 8) while conducting vehicle checking at Rakodu-Pinavemali road junction, 5 the accused coming from Pinavemali village to Vizianagaram side with load of some bags on their motorcycles bearing No. AP 31 DX 3441 and TVS XL

Moped bearing No. AP 32 B 0663, on seeing the police, both the accused tried to go back in a fumbled manner. Upon that, the S.I of Police with the help of his staff surrounded and caught them at a distance of 100 meters and questioned them about the contents of the bags, and they replied that the bags are containing dry cannabis. Since the search and seizure of cannabis is mandated to be conducted only by a Magistrate or Gazetted officer, as per the NDPS Act, 1985, the S.I of Police, gave requisition to Sri Peesapati

Ramakrishnan, Dy. Tahsildar, Vizianagaram (LW 1) who rushed to the spot along with two VROs viz., Veluri Surya Bhagavanulu-VRO (LW 2) and Dandi

Krishna Murthy Naidu-VRO (LW 3), and in their presence he searched the vehicles along with the police party and found 5 mica bags containing 24 cannabis packets hanged to the vehicles bearing Nos. AP 31 DX 3441 and

TVS XL moped AP 32 B 0663, and on minute observation, the Dy.Tahsildar found contraband/cannabis in all the above five mica bags. He also observed due procedure under the NDPS Act, 1985, and the contents of the above 5 mica bags with 24 packets of ganja wrapped in brown coloured tape and seized them under the cover of mediators report which was drafted then and there and handed over the seized cannabis packets, 2 two wheelers along with the accused Nos 1 and 2 to the S.I of Police for taking necessary action.

Samples were also taken from each packet i.e., of two samples of 25 grams each with the help of the weighing person Pilla Trinadh (LW 4) in the presence of Dy. Tahsildar, which are marked as 1A to 24 A and 1B to 24B. The weighing person (LW 4) has also gave a weighing certificate to the Dy.

Tahsildar that the weight of the contraband cannabis is 65.860 K.Gs.

(ii)On the confession of the accused Nos 1 and 2, the S.I of Police took them into custody on 19.2.2018 at 13.30 hours and basing on 6 the mediators report he registered the same as FIR in Cr.No.31/2018 under

Sec. 8(c) r/w 20(b)(ii) of the NDPS Act 1985, of Vizianagaram Rural Police

Station at 15.00 hours, submitted the original FIR along with the mediators report and connected documents to the concerned court, forwarded the copies of FIR to all the concerned officers, as the offence is grave in nature.

Later, Sri D.Lakshmanarao, Inspector of Police, Vizianagaram rural circle (LW

13) has took up investigation and forwarded the accused for judicial remand on the same day to the concerned court.

(iii)The investigation has revealed that A.1 is native of

Denkada village and presently residing at AMG Colony, Narava and eking out his livelihood by doing electrical works. He studied upto 10th class, got married to the sister of A.2 and blessed with three children. Due to his poverty he is unable to maintain the family, for easy earning he has chosen illegal transportation of ganja to gain huge amount from A.3. A.2 isresident of Manchukondavari satram, Vizianagaram, and he also studied upto 10th class and eking out his livelihood by doing kirana business. He used to visit shandies of agency areas of Paderu, Hukumpeta and Araku and got acquaintance with A.3 who is already in the illegal business of transportation of ganja to various places. A.1 and A.2 are close relatives. A.2 was arrested by P.M.Palem Police in Cr.No.125/2017 under Sec. 8(c) r/w 20(b)(ii) NDPS Act, lodged in Central Jail, Visakhapatnam. During that time, A.1 used to visit

Central Jail to meet his brother-in-law and at the same time, A.3 also visited

A.2 and A.2 has introduced A.1 to A.3. A.3 has offerred A.1 huge amount if he transports cannabis to various places and also promised to provide him a motorcycle for transportation which was accepted by A.1. Later, A.3 has provided the motorcycle bearing No. AP 31 DX 3441 to A.1 and since then A.1 used to transport cannabis to various places as instructed by A.3 and in the meantime he was arrested by Nagpur police and lodged in jail. Both A.1 and 7

A.2 after their release from the respective jails, continued their transportation of cannabis business. As usual A.3 has intimated to A.1 and A.2 to collect the cannabis from him and handover the same to Chennai Party at Vizianagaram railway station but they were caught by police on 19.2.2018. On verification of the vehicle registration search through Government of A.P. Transport

Department portal, the address of the crime vehicle bearing No. AP 31 DX 3441 used by A.1 is in the name of A.3/Balorda Matya Lingam, S/o. Late

Somanna, R/o. Volda village and Panchyat, Hukumpeta mandal,

Visakhapatnam who arranged the motorcycle to A.1 for illegal transportation of ganja. The other crime vehicle ie., TVS XL moped bearing No. AP 32B 0663 was purchased by A.2 from a mechanic which is assembled with spare parts for illegal transportation of ganja.

(iv)The samples were forwarded to the Regional

Prohibition & Excise Laboratory, Visakhapatnam on 7.3.2018 for chemical analysis by R.Mohanarao-HC 1270 (LW 9) through the S.Satyanarayana-PC 1510 (LW 10) and the chemical analysis report was received on 14.4.2018 wherein Sri G.Srinivas, Govt. Chemical Examiner (LW 11) has opined that “Fast blue” salt-B test” was conducted on the samples and they are positive and hence, this charge sheet is filed against the accused Nos 1 and 2 for the above stated offence and A.3 is still absconding and efforts are made for his arrest. Hence, the charge.

3.The case was taken on file by my Predecessor in office for the offence punishable under Section 8 (c) r/w 20 (b) (ii) (C) of NDPS Act, 1985, against A.1 and A.2 and numbered as NDPS S.C.No.38/2018.

4.On appearance of A.1 and A.2, copies of documents were furnished to them. Upon hearing both sides, on 28.12.2018, a charge under

Section 8 (c) r/w 20 (b) (ii) of NDPS Act, 1985 was framed by my

Predecessor against the accused Nos.1 and 2, read over and explained to 8 them in vernacular language, they pleaded not guilty and claimed to be tried. However, when the matter came up for examination of accused under

Sec.313 Cr.P.C, it is found that the quantity involved in this case is 65.860 Kgs which is commercial quantity which attracts the charge under Sec. 20(b)(ii) (C) read with Sec.8 (c) but the charge was framed under Sec. 8(c) r/w 20(b)

(ii) NDPS Act, against the accused by my Predecessor. Hence, on 8.12.2023, the accused Nos 1 and 2 were called present, and this court heard the counsel for the accused, and by invoking the provisions u/sec. 216(2) Cr.P.C, altered the charge from Sec. 8(c) r/w 20(b)(ii) to Sec. 8(c) r/w 20(b)(ii)(C) of the NDPS Act, read over the charge and explained to the accused in vernacular language, which they denied and pleaded not guilty. No further evidence was lead after altering the charge.

5.The prosecution has examined P.Ws 1 to 9 and marked

Exs.P.1 to P.21 and M.Os.1 to 27, to establish the case of the prosecution.

6.After closure of the prosecution side evidence, A.1 and A.2 were examined under section 313 Cr.P.C, explaining the incriminating material appearing against them in the evidence of prosecution witnesses.

The case of accused is total denial except stating that their signatures were obtained by summoning them to the Police Station and they are no way concerned either with the vehicles or with the ganja, and they reported that they have no defense.

7.Heard the arguments advanced by the Special Public

Prosecutor and the learned counsel for the accused.

8.Now the point for determination is, “Whether the prosecution has established the guilt against the accused Nos 1 and 2 for the offence punishable under Section 8

(c) r/w 20 (b) (ii) (C) of the N.D.P.S. Act, 1985 beyond reasonable doubt and whether the 9 accused Nos.1 and 2 are liable for punishment for the said offence?”

9.POINT :- (I)The prosecution to establish its case has examined P.Ws 1 to 9 and marked Exs.P.1 to P.27 and also M.Os 1 to 27.

P.W.1 is the Dy.Tahsildar/Gazetted Officer. P.W.2 is the mediator. P.W.3 is the weighing person. P.W4 is the Head Constable who assisted in investigation of the crime. P.W.5 is the Head Constable and scribe of the mediators report.

P.W.6 is the Head Constable who handed over the sealed box containing samples to the Excise FSL, Visakhapatnam, on the instructions of the SDPO.

P.W.7 is the Head Constable who prepared the covering letter for sending the samples to chemical analyst by obtaining the signature of the SDPO and

P.W.8 is the Sub Inspector of Police, who conducted the vehicle checking, detected the offence, got conducted search and seizure through P.W.1 and registered FIR. P.W.9 is the Investigation Officer in this case.

(ii)Ex.P.1 is the notice issued by P.W.1 to the accused.

Exs.P.2 and P.3 are the no objection endorsements by the accused Nos 1 and 2 respectively. Ex.P.4 is the mediators report dated; 19.2.2018. Ex.P.5 is the signature of P.W.2 on Ex.P.4. Ex.P.6 is the weighing letter. Ex.P.7 is the signature of P.W.3 on Ex.P.6. Ex.P.8 is the signature of P.W.4 on Ex.P.8. Ex.P.9 is the signature of P.W.5 on Ex.P.4. Ex.P.10 is the letter prepared by P.W.7.

Ex.P.11 is the signature of P.W.8 on Ex.P.4. Ex.P12 is the letter addressed by

P.W.9 to the SDPO, Vizianagaram informing about this case. Ex.P.13 is the memo filed by the police for conducting inventory before the Magistrate.

Ex.P.14 is the inventory report of the Magistrate. Ex.P.15 is the chemical analysis report. Ex.P.16 is the letter received from the Chemical Analyst along with the report. Ex.P.17 is the letter of advice. Ex.P.18 is the signature of P.W.8 on the FIR. Ex.P.19 is the original FIR in Cr.No.31/2018 of 10

Vizianagaram rural Police Station. Ex.P.20 is the notice issued by P.W.8 to

P.W.1/Gazetted Officer. Ex.P.21 is the notice issued to the weighing person.

(iii) M.Os.1 to 24 are the sample packets. M.O.25 is the motorcycle bearing No. AP 31 D X 3441. M.O.26 is the TVS XL bearing No. AP 32 B 663 and M.O.27 is cash of Rs.350/- (three hundred rupee notes and one fifty rupee note).

(iv)The contention of the learned Special Public

Prosecutor is that in this case, A.1 and A.2 were found while transporting ganja and caught by the S.I. of Police, Vizianagaram Rural Police Station, while they are transporting ganja on one motorcycle bearing No. AP 31 DX 3441 and on one TVS XL moped bearing No.AP 32 B 0663 at Rakodu-

Pinavemali road junction, during vehicle checking. When they perturbed on seeing the police, they were restrained and questioned regarding the bags hanging on the motorcycle handles of their respective vehicles, they revealed that they contain ganja, upon which, the S.I of Police has called for the

Gazetted Officer ie., Dy. Tahsildar, Vizianagaram, who came to the spot along with two VROs and in their presence when he searched the vehicles along with police party, found five mica bags containing 24 cannabis packets hanged to the vehicle and on observation by the Dy.Tahsildar, the same is found to be contraband/cannabis in all the mica bags, by observing due procedure he got opened the packets, got it weighed through weighing person and seized the same by drawing samples from those packets and prepared a report at the scene of offence in the presence of mediators and the other police party and basing on the said report, the crime was registered, which is further investigated by the Inspector of Police upon submission of the information by the S.I of Police, and as such, the prosecution is able to establish the guilt of the accused in the evidence of

P.Ws 1 to 9 and also through documents ie., Exs.P.1 to P.21 and also M.Os 1 to 11 27 and as such, the accused are liable for punishment under Sec. 8(c) r/w 20

(b)(ii)(C) of the NDPS Act as the total contraband seized from the accused is 65.860 K.Gs which is huge as well as commercial quantity.

(v)It is also submitted by the learned Special Public

Prosecutor that A.2 in this case was already involved in other cases and as per the mediators report, A.1 used to visit A.2 while he was in jail and A.1 is no other than the brother-in-law of A.2 who married the sister of A.2 and he was blessed with three children, as the income is not sufficient to maintain his family, for easy earning, he has chosen the illegal transportation of ganja to gain huge amounts and A.2 who is also eking out his livelihood by doing kirana business used to visit shandies in the agency area of Paderu,

Hukumpeta, Araku during which time he got acquaintance with A.3 who is also involved in illegal business of transportation of ganja to various places and A.2 was also arrested by P.M.Palem police in Cr.No.125/2017 u/sec.8 (c) r/w 20(b)(ii) of the NDPS Act and was lodged in Central Prison,

Visakhapatnam. During that time when A.1 used to visit to meet A.2, where

A.3 also used to visit A.2, he has introduced A.1, to A.3 and upon his offer to

A.1 for paying huge amount for transportation of ganja to various places with a promise to provide a motorcycle for transportation, accordingly, when he provided the motorcycle ie., AP 31 DX 3441, since then A.1 has started transporting ganja to various places as instructed by A.3 and was arrested by

Nagpur police and after the release both A.1 and A.2 have continued the transportation of cannabis business and when A.3 has intimated A.1 and A.2 to collect cannabis and handover to Chennai party at Vizianagaram railway station and while transporting the same they were caught by the police on 19.2.2018 and the whereabouts of A.3 are not known and therefore, the prosecution was able to establish its case and the quantity seized from the possession of A.1 was 37.67 K.Gs whereas from A.2 it was 28.100 K.Gs. The 12

Dy. Tahsildar who conducted the search and seizure was examined as P.W.1 has issued Sec.50 notice as contemplated under the NDPS Act, to A.1 and A.2 under Ex.P.1 for which the accused have endorsed no objection under Exs.P.2 and P.3 and accordingly, the mediators report was prepared under Ex.P.4 and the ganja was seized by taking samples which are numbered as 1A to 24A and 1B to 24B and M.Os 1 to 24 are the samples whereas M.Os 25 and 26 are the alleged motorcycle and moped, whereas M.O.27 is the cash of Rs.350/- seized from A.1 and A.2.

(vi)It is further contended by the learned Special Public

Prosecutor that nothing was elicited in the cross-examination of P.W.1 with regard to the innocence of the accused. The scribe was also examined in this case. Even though he did not put his signature as scribe, he signed as part of police raiding team. Further, the evidence of P.W.2/VRO and P.W.3/appraiser and P.W.4/HC, P.W.5/scribe of Ex.P.4, P.W.6/Head Constable who handed over the samples to FSL and P.W.7 another Head Constable who handed over samples with letter of advice, under a covering letter along with the material objects to P.W.6 for transmitting to the Chemical analyst and P.W.8 the S.I of

Police who conducted the raid and P.W.9 the Investigation Officer who completed the further investigation and filed charge sheet clinchingly established the prosecution case and as such, the accused are liable for punishment.

10.(i) On the other hand, the contention of the learned defense counsel is that he mainly thrashed upon the prosecution evidence more particularly the search and seizure conducted by P.W.1 who is the Dy.

Tahsildar, on the ground that P.W.1 had marked his stamp on the mediators report for which he is not competent and there is no proof that he is authorized by the Tahsildar and he used the stamp of the Tahsildar without mentioning that he is using it for Tahsildar which is a grave irregularity in the 13 prosecution case and as such, he did not conduct the alleged mediators report under due procedure as per the provisions of NDPS Act, and the same is doubtful and he did not even visit the spot and merely put his signatures and stamps on the papers by sitting in the police station.

(ii)It is also the contention of the learned defense counsel that as per the charge sheet there are three accused involved in this case and the third accused is the key person, but he is shown as absconding.

It is also the contention of the learned defense counsel that there is no date, time, year and month on Ex.P.1 which is Sec.50 notice and on Exs.P.2 and P.3 which are consent endorsements, there is no signature of P.W.1 and when the

Tahsildar is not available P.W.1 who is the Dy. Tahsildar was called by the police. Further, as seen from Ex.P.4 the alleged mediators report, the identity of P.W.1 was not revealed to the accused that he is Gazetted officer and going to conduct search, which is mandatory as per the provisions of the NDPS Act, and the notice consent as admitted by P.W.4 and P.W.5 during their cross- examination was written by P.W.1 himself in his handwriting whereas P.W.1 admitted that he is not the scribe of Exs.P.2 and P.3 which is contrary to the cross-examination of P.Ws 4 and 5.

(iii) It is also contended by the learned defense counsel that on the requisition the date was mentioned as 19.8.2018 whereas the date of offence was shown as 19.2.2018 and whether P.W.1 was physically present at the spot at the alleged raid is doubtful. Further, he went to the scene of offence as per the oral orders of the Tahsildar and he used the stamp of the Tahsildar but he did not sign as for Tahsildar and as such it is clear that the identity and designation of P.W.1 was not revealed to the accused.

(iv)It is further squabbled by the learned defense counsel that as seen from the evidence of P.W.8 who is the S.I. he was 14 present and he himself signed and registered the crime, when he has conducted part of seizure and investigation and he himself is the informant/complainant he cannot act as investigation officer to register the crime, and therefore, the investigation conducted by P.W.8 cannot be looked into, as it vitiates the proceedings. Further, as per Ex.P.4 the ganja was kept at Narava village in a dilapidated house by the accused, but the said house is not searched to verify whether any items are there and no witnesses are examined from that place. Even the crime number is mentioned on M.Os 1 to 24 as admitted by the S.I of Police in the cross-examination and therefore, how the crime number is mentioned on the sample packets even before registering the crime at the spot itself is not explained by the prosecution.

The registration of crime by the S.I at the spot itself is doubtful which creates an inference that the entire proceedings are prepared in the police station itself, and no such proceedings were conducted at the alleged scene of offence ie., Rakodu-Pinavemali junction. The evidence of P.W.2 who is one of the mediators/VRO is contrary to the cross-examination of P.W.1 regarding informing the designation of the Dy. Tahsildar to the accused before conducting search. P.W.3 who is the appraiser and who issued Ex.P.6 weighing slip the date and time is overwritten and without any initial.

Further, P.W.3 who said to be the appraiser is an auto driver whereas his brother is having kirana shop according to the evidence of P.W.3, but the license of the shop nor the license for using weighing machine was not produced by P.W.3.

(iv)It is also argued that according to the evidence of

P.W.4 who is the Head Constable during his cross-examination he admitted that the notice under Exs.P.2 and P.3 were prepared by P.W.1 himself which is contrary to the evidence of P.W.1 whereas P.W.1 deposed that he does not know who is the scribe of Exs.P.2 and P.3 notices; 15

(v)Coming to the evidence of the scribe who is P.W.5, during cross-examination he admitted that he did not sign on Ex.P.4 as scribe, that the crime number is mentioned on the samples as 31/2018. Further,

P.W.5 when he did not sign as scribe on Ex.P.4, surprisingly he signed along with other witnesses on the mediators report. There is no proof for the evidence of P.W.7 that he has sent the samples to FSL under the letter of advice and to show that P.W.6 handed over the samples to the Excise FSL,

Visakhapatnam by filing any endorsement or acknowledgment. P.W.7 who is

Head Constable who allegedly prepared the covering letter did not put any side initial on the letter and there is no date of acknowledgment on the said letter.

(vi)It is also the contention of the learned defense counsel that though P.W.8 has deposed in his evidence that he proceeded to the spot along with other staff on the instructions of his superiors, and admitted during cross-examination that he made G.D. entry before starting from the station on 19.2.2018, but no such GD entry extract is filed in the court though he stated that he mentioned it in the FIR reference, but the same is not filed in the court. Surprisingly, P.W.8 has not only registered the

FIR but as well he has conducted part of investigation, but he did not sign on

Ex.P.4 mediators report and as the crime number is mentioned on the samples, that the FIR is registered on the spot on Ex.P.4 has to be viewed cautiously. Further, it is admitted by P.W.8 as well that there is over writing at the month and time of conducting in Ex.P.6 weighing slip issued by P.W.3 and in Ex.P.3 also there is over writing at the time, which is not properly explained by the prosecution. Moreover, the Investigation Officer ie., P.W.9 who filed charge sheet in this case has admitted during cross-examination regarding registration of FIR by P.W.8 and whether it is registered at the spot or after returning to the police station is contrary to the evidence of P.W.8.

16

(vii) It is further wrangled by the learned defense counsel that for the inventory proceedings under Ex.P.13 filed by the prosecution there are no supporting photos or videograph filed along with the inventory proceedings and the permanent register of property which is available in the police station is not produced before this court to show in whose custody the property and samples are lying after the alleged seizure and whether it was kept in safe custody till its production before the concerned court or forwarding the samples to the chemical analyst and in order to establish the same, the permanent record of the police station which is the property register is not produced by the prosecution. Further, A.3 who is the prime accused in this case was let go and in order to safeguard A.3, the accused

Nos 1 and 2 are falsely implicated in this case and the source person who is the prime accused in this case ie., A.3 is not caught by the police and for the involvement of A.1 in other cases no record is filed by the prosecution and mere mentioning of his involvement in other cases is not enough and therefore, for all these reasons and admissions of the prosecution witnesses during cross-examination, the prosecution failed to establish the guilt of the accused beyond reasonable doubt and as such, the accused did not commit any offence and they are entitled for acquittal.

11.By the submissions made by the learned Special Public

Prosecutor as well as learned defense counsel, even before considering the contradictions or lacunae as pointed out by the learned defense counsel, it is necessary to appreciate the evidence of the prosecution witnesses at the first instance. According to the prosecution, that when the accused were found while coming on one motorcycle and TVS XL moped in possession of bags hanging to the handles of their vehicles and while another bag carried by A.1 was kept on the petrol tank of that motorcycle, during vehicle checking by the investigation team headed by P.W.8 along with other Head Constables 17 and Constables, P.W.8 by duly sending intimation to the Tahsildar and after the arrival of the Dy. Tahsildar along with two VROs, has conducted the proceedings in the presence of the Dy. Tahsildar and VROs and other police party. P.W.1 who is the said Dy. Tahsildar has categorically deposed in his evidence that on 19.2.2018 at 11.30 a.m, when the S.I of Police intimated to their Tahsildar regarding suspected transportation of ganja at Rakodu-

Pinavemali junction and sent intimation along with letter with a constable to depute one Gazetted officer and two VROS on the instructions of their

Tahsildar, he along with two VROs ie., P.W.2/V./Bhagvanulu and

L.W.3/D.Krishnamurthy have proceeded and reached there at 12.30 p.m.

12.According to P.W.1 when they reached there, they found two persons with two motorcycles and also the police team and the contraband, in the packets on motorcycles. On the information given by the S.I of police that he caught the above two persons on suspicion, he prepared a notice, informed those persons regarding the suspicion that there is ganja and he being Gazetted Officer would like to conduct search and asked them if they have any objection and when they reported no objection, he started the search and found 10 packets with A.1 on his bike in polythene covers and 14 packets with A.2 in plastic covers on his motor bike, he seized under the mediators report under Ex.P.4 wherein the accused have revealed that A.2 is the brother in law of A.1 and A.1 is doing ganja business along with A.2 and one Matyalingam and as per the instructions of Matsyalingam who is acquainted to A.2 they both used to do ganja business and A.2 used to supply ganja to A.1 on the instructions of A.3 and A.3 used to give money to A.2 for supplying ganja and according to P.W.1, Ex.P.1 is the notice issued by him to the above two accused and Exs.P.2 and P.3 are the no objection endorsements issued by A.1 and A.2 respectively, which bear his signature and during the search they also called for one Trinadh for weighing the ganja 18 ie., P.W.3 and when the ganja is weighed by weighing machine brought by

P.W.3, it was found to be 37.260 K.Gs in the packets available with A.1 and 28.100 K.Gs from the packets available with A.2, out of which they have drawn two samples of 25 grams each from each packet, total 48 sample of 25 grams each which was given numbers as 1A to 24 as and 1B to 24B by affixing the signed slips on the samples along with the signatures of the mediators P.W.2 and L.W.3, the S.I of police, A.1 and A.2, they seized the ganja and M.Os 1 to 24 are the samples seized, M.O.25 and 26 are the motorcycle and TVS XL moped and police have also seized Rs.350/- cash out of which Rs.200/- was seized from one person and Rs.150/- was seized from the other person and Ex.P.4 is the mediators report which bears the signature of himself, two VROs, S.I and other police staff and also A.1 and A.2 and the seized property along with accused was handed over to the S.I of Police and he also identified A.1 and A.2 as the same persons while they are in court and

M.O.27 is the cash seized by the police.

13.The contention of the learned defense counsel is that P.W.8 who is the S.I of Police who participated in the raid has conducted part of investigation, as such he cannot act as investigation officer himself as he is the complainant/informant as well in this case and as he himself registered the crime basing on the mediators report, the entire proceedings are vitiated and as such, the investigation conducted by P.W.8 is not valid. On the contrary, the contention of the learned Special Public Prosecutor is that as per the settled law of the Hon’ble Supreme Court in NDPS Cases the complaint himself can be an investigator and also conduct investigation since in view of nature of cases. In support of the said contention that the complainant can be an investigator, the learned Special Public Prosecutor has filed the ruling of the Hon’ble Supreme Court MUKESH SINGH VS.

STATE (Narcotic Branch of Delhi) wherein the Larger Bench of the Hon’ble 19

Supreme Court on the reference made in Special Leave Petitions held (while referring the earlier decisions) that “It cannot be said that in the aforesaid decisions, this court laid down in general proposition of law that in each and every case where the informant is investigator, there is bias caused to the accused and the entire prosecution is to be disbelieved and the accused is entitled for acquittal. In a case where the informant himself is the investigator by that itself cannot be said that the investigation is vitiated on the ground of bias or like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case.Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal”.

In that case the Hon’ble Supreme Court while overruling the earlier decisions of the Supreme Court in (2018) 19 SCC 627 (MOHAN LAL VS.

STATE) and the other decisions taking contrary view that the informant cannot be the investigator and in such case the accused is entitled to acquittal, has held that the same is no longer good law. Therefore, the Larger

Bench of the Hon’ble Supreme Court sets the ambiguity in case whether an informant can be an investigator and as such, there is no force in the contention raised by the learned defense counsel that P.W.8 who is the complainant himself cannot be the investigatator in this case and the proceedings are vitiated.

14.Moreover, besides the evidence of P.W.1, the other witnesses who have participated in the raid ie., P.W.2-VRO, P.W.3-weighing person, P.W.4-Head Constable/part of raiding team, P.W.5-scribe, P.W.8- informant as well as the S.I of Police, who registered the crime basing on

Ex.P.4/mediators report, have consistently and conjointly corroborated and 20 supported the version of P.W.1 with regard to the raid, finding of A.1 and A.2 while coming on two motorcycles and finding of contraband/ganja in the mica bags hanging to the handles of their bikes, and also the enquiry conducted by P.W.1 with regard to the contents of those mica bags and packets by posing to A.1 and A.2 and establish that all the proceedings are conducted at the said Rakodu-Pinavemali junction in the presence of himself as well as the raiding team. Even though some discrepancies and inconsistencies are pointed out to P.W.1 with regard to over writing of time and date, not putting initials, preparation of Exs.P.2 and P.3 endorsements and the scribe of Exs.P.2 and 3, putting stamp of the Tahsildar by mentioning as Dy. Tahsildar by P.W.1 and his capacity to use the stamp of Tahsildar when his designation is Dy.

Tahsildar, it is pertinent to note that none of those discrepancies and inconsistencies pointed out either during the cross examination of P.W.1 or during cross examination of the other witnesses, have shaken the credibility of the prosecution witnesses nor cut the root of the prosecution case, since there is no need for all the prosecution witnesses to come and speak falsehood against the accused, more particularly when they are found in possession of huge quantity of contraband during the vehicle checking and raid conducted by the police at Rakodu-Pinavemali junction on 19.2.2018.

Even though it is suggested to P.W.1 that he put his stamp on Ex.P.4 as

Dy.Tahsildar, as seen from Ex.P.4, there is no stamp as Dy.Tahsildar either on

Ex.P.4 or on any other documents ie., the alleged notice under Ex.P.1 or endorsement of the accused under Exs.P.2 and P.3 and the other documents filed by the prosecution, except signing as P.Ramakrishna in green ink, there is no such stamp on the said documents. Even though it is suggested to

P.W.1 that there is no date and time on Exs.P.1, P.2 and P.3, as seen from

Exs.P.1 to P.3 it is clearly mentioned in the contents of the notice that “this day ie., 19.2.2018 morning 11.30 a.m, information received and he was 21 called to act as Gazetted Officer,” as per “Ex.P.2 on 19.2.2018 morning 11.30 a.m, the TVS XL moped of A.2 was caught at Rakodu-Pinavemali junction”, and “on 19.2.2018 morning 11.30 a.m, the motorcycle of A.1 was caught at

Rakodu-Pinavemali junction” as per Ex.P.3 which is enough to believe the version of the prosecution and the evidence of P.W.1 and to reject the contention of the learned defense counsel that there is no date, time mentioned in Exs.P.1 to P.3, when the contents of Exs.P.1 to P.3 clearly show the date and time, there is no force in the argument submitted by the learned defense counsel that there is no date and time on Exs.P.1 to P.3.

15.It is also the contention of the learned defense counsel that in Ex.P.4, it is not mentioned that P.W.1 has informed to the accused that he is

Gazetted Officer and empowered to conduct search and seizure as per the

NDPS Act. But, as seen from Ex.P.1/notice which is issued to A.1 and A.2, it clearly shows the name of the person served the notice as P.Ramakrishna, he is working as Dy.Tahsildar, Vizianagaram mandal, he is Gazetted Officer and he is going to search the ganja packets with them and asked them whether they have any objection, which is enough to show that P.W.1 had complied the mandatory provisions by informing his designation to the accused and taking their consent before conducting the search and seizure. Mere non mentioning of the said information given to the accused in Ex.P.4 does not amount to non compliance of mandatory provisions since by Ex.P.1 itself

P.W.1 has informed the accused his identity as Gazetted Officer and the purpose of issuing them the notice to conduct search and seizure as Gazetted

Officer.

16.Further, the contention of the learned defense counsel that the Dy.Tahsildar is not supposed to use the stamp of the Tahsildar and as admitted by P.W.1 he does not have any authorization to use the stamp of

Tahsildar and he cannot use the stamp and he did not even sign under his 22 signature as “for Tahsildar” and as such, he is not authorized person. When the alleged search and seizure in the presence of the mediators ie., VROs and other police personal and the weighing person as well as the scribe, categorically corroborated the evidence of P.W.1, the main intent of conducting search by P.W.1 as Gazetted Officer is complied as per the mandatory provisions of the NDPS Act, and mere failure to mentioning as “for

Tahsildar” cannot be a ground to disbelieve the proceedings conducted by

P.W.1 or the evidence of P.W.1, when it is corroborated by the evidence of the other prosecution witnesses. Hence, there is no merit in the argument submitted by the learned defense counsel on this aspect.

17.Now with regard to the point raised by the learned defense counsel that A.3 is the prime accused in this case and he is shown as absconding and in order to safeguard A.3, A.1 and A.2 are falsely implicated in this case by letting go A.3 without apprehending A.3 is concerned, it is pertinent to note that in this case, even in the absence of apprehending A.3, since A.1 and A.2 were caught red-handed while in possession and transporting huge ganja, mere non apprehension of A.3 does not give any exoneration to A.1 and A.2 from criminal liability. Therefore, there is no force in the argument submitted by the learned defense counsel that the police have falsely implicated A.1 and A.2 in this case to safeguard A.3. It is for the police to take steps against A.3.

18.It is also contended by the learned defense counsel that according to the prosecution, contraband was kept by the accused in Narava village in a dilapidated house but the investigation officer who filed charge sheet did not conduct any investigation in that line to prove whether any material is found there, by visiting that dilapidated house at Narava and no witnesses are examined in this regard. It is pertinent to note that it is not the case of the prosecution that the accused were found in possession of the 23 contraband in the dilapidated house but it is the case of the prosecution that when the accused were proceeding on their motorcycles in short cut road in order to escape from the view of police, they were caught at Rakodu-

Pinavemali junction while proceeding with ganja on their motorcycles and were caught red-handed and therefore, even if the investigation officer did not take any steps with regard to conducting any investigation at the dilapidated house at Narava or failed to examine any witnesses from that place, the same is not fatal to the prosecution case since according to all the prosecution witnesses except the weighing person, the accused were caught red-handed in possession of ganja while proceeding on motorcycles at

Rakodu-Pinavemali junction. Hence, there is no point in the contention raised by the learned defense counsel in this regard.

19.With regard to the over writing of date as mentioned in

Ex.P.6 as pointed out by the learned defense counsel and also that the date is mentioned as 19.8.2018 is concerned, as seen from Ex.P.6 even the over writing as pointed out by the learned defense counsel is not a ground to disbelieve the prosecution documents since the evidence of all the prosecution witnesses consistently reveals the date of offence as 19.2.2018 and information and apprehension of the accused at 11.30 a.m, on that day, the said over writing as pointed out by the learned defense counsel does not in any way cause prejudice to the accused since all the documents and the evidence of all the prosecution witnesses consistently show the date and apprehension of the accused as 19.2.2018 when the FIR was registered on the same day and the accused were remanded to judicial custody. Further, the requisition under Ex.P.1 also shows the correction of date and time as pointed out by the learned defense counsel, but as seen from Ex.P.1 the correction of date and time was duly initialed by the person who endorsed

Ex.P.1. Therefore, since the over writings as pointed out by the learned 24 defense counsel do not cause any prejudice to the accused in view of the consistent and corroborative evidence of the prosecution witnesses, the same is not fatal to the case of the prosecution and there is no merit in the argument submitted by the learned defense counsel.

20.It is also the contention of the learned defense counsel that there is no proof that P.W.6 has handed over the samples under Ex.P.10 to the

FSL and there is no date of acknowledgment or endorsement of P.W.7 who allegedly prepared the covering letter and the same is not side initialled by

P.W.7. The same cannot be considered as a major defect since the chemical analysis report marked as Ex.P.15 clearly shows that the samples of substance was received on 7.3.2018 with seals correct and intact from the

Dy.S.P, SC ST Cell-I, Vizianagaram with letter C.No.36/2018 dated 6.3.2018 which was prepared by P.W.7 according to the prosecution. The evidence of

P.W.7 is that on 6.3.2018, P.W.6/Police Constable of Vizianagaram rural police station came to SDPO Office, Vizianagaram along with letter of advice and the material objects and basing on the said letter of advice he prepared one covering letter addressed to the Regional Proh. & Excise Laboratory,

Visakhapatnam for chemical analysis of the material objects and obtained the signature of SDPO and also constable 1510 and handed over the same to him for handing over to Proh. & Excise Laboratory, Visakhapatnam and Ex.P.10 is the letter prepared by him. As seen from Ex.P.10 it shows that it was prepared on 6.3.2018 and the same was received by PC 1510 under endorsement. Therefore, the evidence of P.Ws 6 and 7 in this regard cannot be doubted and there is no force in the contention of the learned defense counsel that there is no side initial or acknowledgment for the letter of advice allegedly prepared by P.W.7.

21.While the evidence of P.Ws 1 to 8 stands as above, P.W.9 who is the investigation officer in this case has categorically deposed that on 25 receiving information from P.W.8 on 19.2.2018 at about 15.00 hours regarding registration of case in Cr.No.38/2018 under Sec. 8(c) r/w 20(b)(ii) of the NDPS

Act, along with mediators report/Ex.P.4 and 2 two wheelers and also the seized contraband along with two sets of samples and cash of Rs.350/- and the accused, he verified the same and later forwarded the samples for analysis through SDPO under the letter of advice and also filed memo for conducting inventory before the AJFCM, Vizianagaram under Ex.P.13 and also got concluded the inventory proceedings under Ex.P.14 and after receipt of chemical analyst report under Ex.P.15, wherein the samples were analysed positive for “Fast blue B-salt test positive”, he filed charge sheet in this case against the accused and Ex.P.16 is received from the chemical analyst, along with letter of advice which is marked as Ex.P.17. Though it is marked subject to objection the said objection cannot be sustained since Ex.P.16 letter received from the chemical analyst itself shows the letter of advice sent to sent is accompanied and enclosed with the letter sent by her to this court, which is received from Government office which cannot be doubted.

According to P.W.9, P.W.8 himself registered the case ie., FIR and the notices issued by P.W.8 to the Gazetted Officer and also the weighing person and FIR, are marked through P.W.9. Though it is suggested to P.W.9 that he did not file any photographs or videograph at the time of conducting inventory proceedings, the inventory conducted by a judicial officer cannot be viewed with suspicion since the proceedings are conducted before the Judicial

Magistrate of the I Class. Even though some suggestions are made to P.W.9

that he did not file any record regarding the ownership particulars of the seized vehicles, but, however, he stated that one of the vehicles as per the mediators report/confession statement is an assembled vehicle and he did not examine the mechanic. Even though it is pointed out to the investigation officer that in order to safeguard accused No.3 he falsely implicated A.1 and 26

A.2 in this case, it is pertinent to note that there is no enemity suggested between the accused and any of the prosecution witnesses to implicate A.1 and A.2 falsely in this case. Further, the discrepancies as pointed out by the learned defense counsel to the prosecution witnesses cannot be considered as fatal in view of the fact that the accused were found while in possession of the contraband by transporting the same on the two motorcycles and were caught red-handed by the prosecution team and were searched and seized in the presence of a Gazetted Officer and the minor discrepancies and inconsistencies as pointed out by the learned defense counsel are not fatal to the prosecution case, since the accused are found while transporting heavy and commercial quantity of the contraband.

22.Further, the contention of the learned defense counsel that

P.W.3 is an auto driver and not a weighing person and his evidence cannot be believed is concerned, that he is only a weighing person who came to the spot according to P.W.1 who is Gazetted officer on the intimation sent by the police, there is no hard and fast rule that an auto driver cannot possess weighing machine and cannot weigh the material when necessary, particularly when it is elicited that his brother is running a kirana shop. As seen from the evidence of P.W.3 his occupation as deposed by him that he is running kirana shop, but he is not an auto driver. There is no proof that P.W.3 is an auto driver even when the charge sheet averments clearly show that

P.W.3 is running kirana shop business.

23.The further contention of the learned defense counsel is that no document is filed by the learned Special Public Prosecutor to prove that A.2 was involved in previous crimes and was arrested by P.M.Palem

Police and A.1 is involved in similar offences. It has to be noted that it is categorically deposed by P.W.8 during his evidence that A.2 was involved in

Cr.No.125/2017 of P.M.Palem Police Station earlier and he was released from 27

Central Prison and A.1 was arrested by Nagpur Police and was released and later they both joined with A.3 and again continued their business, but there is no suggestion from the learned defense counsel with regard to the aspect that A.1 and A.2 were having clean chit and were never involved in the similar offences. Therefore, even though the prosecution did not file any material or document in this regard, the silence on the part of the learned defense counsel when a crime number is specifically mentioned by the investigation officer to rebut the same indicates that the accused are involved in similar offences, but, however, no document is filed by the prosecution in this regard. But, however, since this is not a case where this court has to decide whether the accused is liable for enhanced punishment basing on the previous conviction, this point does not require any adjudication at this stage. Moreover, it is evident from the evidence of P.W.8 that A.1 and A.2 were in jail in the crimes relating to P.M.Palem Police station as well as Nagpur respectively in similar crimes.

24.It is also pointed out by the learned defense counsel that no independent witnesses are examined in this case and all the witnesses are official witnesses. The contention of the learned Special Public Prosecutor is that when the Dy.Tahsildar and VRO have clearly deposed about the possession and mode of transport and also when they are respectable officials from Government Departments as required under the NDPS Act, even in the absence of independent witnesses, their evidence can be believed and trustworthy. The learned Special Public Prosecutor has relied upon the ruling in the case of RIZWAN KHAN VS. STATE OF

CHATTISGARH rendered in CRIMINAL APPEAL NO. 580 OF 2020

(Arising out of S.L.P.(Criminal) No.4422/2019) dated 10.9.2020,

wherein it is observed by the Hon’ble Supreme Court that “As observed and held by this Court in catena of decisions, examination of independent 28 witnesses is not an indispensable requirement and such nonexamination is not necessarily fatal to the prosecution case,”

The Hon’ble Supreme Court while referring to the decisions in the case of Surinder Kumar v. State of Punjab, (2020) 2 SCC 563, AND

Jarnail Singh v. State of Punjab (2011) 3 SCC 521, held that non examination of independent witnesses while dealing with the offences under NDPS Act that merely because prosecution did not examine any independent witnesses, would not necessarily lead to conclusion that the accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status”.

Therefore, in the light of the observations of the Hon’ble

Supreme Court in the above said rulings also, non examination of independent witnesses when the official witnesses spoke consistently and corroboratively, does not make the evidence of the official witnesses unbelievable on the sole ground that no independent witness is examined in this case, when the evidence of official witnesses inspire confidence in the prosecution case.

25.(i)The evidence of the prosecution witnesses inspite of the inconsistencies as pointed out by the learned defense counsel, clinchingly established that the accused Nos 1 and 2 were found while transporting ganja on the two motorcycles at Rakodu-Pinavemali junction and were caught red handed by the police and the further proceedings conducted by P.W.1 along with P.W.2 and the other prosecution team clinchingly established that the accused have committed the offence punishable under Sec. 8 (c) r/w 20(b)(ii)(C) of the NDPS Act by possessing and transporting huge and commercial quantity of ganja, for which they could not produce any license to prove that their possession is lawful. When the accused are found in possession of ganja, there is a reverse burden as contemplated under the 29

NDPS Act, to prove that the possession is not conscious possession to establish their innocence.

(ii) At this stage, the learned Special Public Prosecutor submitted the following rulings:-

(i) in the case of RADHAKRISAN VS. STATE reported in 1988 2 Crimes (HC) 298 of the Hon’ble Bombay High Court, Pajani Bench (Goa) (DB).

(ii) In the case of STATE OF PUNJAB VS. BALDEV SINGH arising out of

Apppeal (Crl) 396 of 1990 dated 21.7.1999, wherein the larger bench consisting of five judges has given guidelines with regard to application of

Sec.50 notice and also presumption with regard to the conscious possession that the protection incorporated in Sec.50 of the NDPS Act for the benefit of the person intended to be searched whether the provisions of Sec.50 are mandatory or directory, but the presumption under Sec.54 of the NDPS Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Sec.50 of the NDPS Act.

(iii)But the mandatory provisions under Sec.50 notice are confined to personal search only and not to search of vehicle or container or premises as held by the Hon’ble Supreme Court in STATE OF PUNJAB VS.

BALJINDER SINGH AND ANOTHER reported in 2019 0 Supreme (SC)

1413 equivalent to 2020 110 ACC 933, 2019 AIR (SC) 5298. Since in this case, the search is not a personal search but only the search of vehicles, the mandatory provisions of compliance of Sec.50 notice cannot be applied to this case. However, in this case service of Sec.50 notice before conducting search was proved in the prosecution evidence under Exs.P.1 to P.3 through

P.W.1, non compliance of Sec.50 notice does not arise, since there is no seizure of any illegal article by not complying the mandatory procedure. As held by the Hon’ble Supreme Court, the statutory presumption under Sec.54 30 of the NDPS Act undoubtedly applies to this case and there is presumption of conscious possession of contraband by the accused in this case since the reverse burden as contemplated under the Act is not discharged by the accused that their possession is not conscious possession.

(v)The above rulingsaptly applicable to the prosecution case and as the accused have failed to discharge their burden, the presumption of conscious possession and the presumption of documents attracts in this case. Therefore, the prosecution is able to establish the guilt of A.1 and A.2 for the offence punishable under Sec. 8 (c) r/w 20(b)(ii)(C) of the NDPS Act and the accused are liable for punishment for the said offence.

The point is answered accordingly.

26.IN THE RESULT, the accused Nos 1 and 2 are found guilty for the offence punishable under Sec. 8 (c) r/w 20(b)(ii)(C) of the NDPS Act, and accordingly they are convicted under Sec.235(2) Cr.P.C, for the said offence.

Dictated to the Stenographer Grade-I transcribed by him

corrected and pronounced by me in open court on this the 10 th day of January, 2024.

SPECIAL JUDGE FOR TRIAL OF CASES UNDER

N.D.P.S. ACT- CUM-I ADDITIONAL DISTRICT

AND SESSIONS JUDGE, VIZIANAGARAM.

27.The Accused Nos 1 and 2 were questioned on the quantum of sentence, the accused No.1 has stated that he has wife and children and he did not commit any offence. The accused No.2 has stated that he did not commit any offence and he was falsely accused.

28.But, the submissions made by the accused Nos 1 and 2 are not acceptable since the offence against the accused Nos 1 and 2 is proved in the evidence of the prosecution witnesses and as they are found while in possession and transportation of huge and commercial quantity of ganja.

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29.Therefore, the accused Nos.1 and 2 are sentenced to

UNDERGO RIGOROUS IMPRISONMENT for a TERM OF 15 (FIFTEEN)

YEARS EACH and also to pay fine amount of Rs.1.00,000/- (Rupees: One

Lakh only) each, and in default of payment of fine amount, accused Nos.1 and 2 shall UNDERGO RIGOROUS IMPRISONMENT FOR SIX MORE

MONTHS EACH, for the offence punishable under Sec. 8(c) r/w 20(b)(ii)(C) of the N.D.P.S.Act.

30.M.Os. 1 to 26 shall be kept in safe custody since the offence against the accused No.3 is pending and he is absconding from the date of offence and his complicity is yet to be established by the police. M.O.27 shall be confiscated to State after expiry of the appeal time.

31.The period of detention already undergone by the accused

Nos 1 and 2 if any, shall be given set off under Sec.428 Cr.P.C.

Dictated to the Stenographer Grade I transcribed by him corrected and

pronounced by me in open court on this the 10 th day of January, 2024.

Sd/- G.RAJANI

SPECIAL JUDGE FOR TRIAL OF CASES UNDER

N.D.P.S. ACT- CUM-I ADDITIONAL DISTRICT

AND SESSIONS JUDGE, VIZIANAGARAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution:-For Defence:-NONE

P.W.1Peesapati Ramakrishnan (Dy. Tahsildar) P.W.2Veluri Surya Bhagavanulu, VRO (Meidator) P.W.3Pilla Trinadh (weighing person) P.W.4Manapuram Krishna, Head Constable P.W.5Roppala Ramarao, Head Constable P.W.6Sunkari Satyanarayana, Constable P.W.7R.Mohanarao, Head Constable P.W.8P.Ramakrishna, S.I of Police P.W.9D.Lakshmanarao, Inspector of Police

Exhibits Marked

For Prosecution:-

Ex.P.1Notice issued by P.W.1 to the accused 32

Ex.P.2No objection endorsement by A.1

Ex.P.3No objection endorsement by A.2

Ex.P.4Mediators report datedju 19.2.2018

Ex.P.5Signature of P.W.2 on Ex.P.4

Ex.P.6Weighing slip

Ex.P.7Signature of P.W.3 on Ex.P.6

Ex.P.8Signature of P.W.4 on Ex.P.4

Ex.P.9Signature of P.W.5 on Ex.P.4

Ex.P.10 Covering Letter prepared by P.W.7

Ex.P.11 Signature of P.W.8 on Ex.P.4

Ex.P.12 Letter addressed by P.W.9 to the SDPO, Vizianagaram

Ex.P.13 Memo filed by police for conducting inventory before the Magistrate

Ex.P.14 Inventory report

Ex.P.15 Chemical analysis report

Ex.P.16 Letter received from Chemical Analyst along with report

Ex.P.17 Letter of advice

Ex.P.18 Signature of P.W.8 on the FIR

Ex.P.19 Original FIR in Cr.No.31/2018 of Vizianagaram Rural Police station

Ex.P.20 Notice issued by P.W.8 to P.W.1/Gazetted officer

Ex.P.21 Notice issued to weighing person (PW 3)

For Defence:-NIL

Material Objects Marked

M.Os.1 to 24: Sample packets

M.O.25 : Motorcycle bearing No. AP 31 DX 3441

M.O.26 : TVS XL moped bearing No. AP 32 B 663

M.O.27 : Cash OF Rs.350/- (3 Rs.100/- notes and 1 Rs.50/- note)

Sd/- G.RAJANI

SPECIAL JUDGE FOR TRIAL OF CASES UNDER

N.D.P.S. ACT- CUM-I ADDITIONAL DISTRICT AND

SESSIONS JUDGE, VIZIANAGARAM.

Copy submitted to the Hon’ble Registrar (Judicial), Hon’ble High Court of Judicature at Amaravathi, (by way of C.D.).

Copies Communicated to :

1. The Special Public Prosecutor, Vizianagaram.

2. The District Collector, Vizianagaram.

3. The Superintendent of Police, Vizianagaram.

3. The S.H.O, Vizianagaram Rural Police Station.

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IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF CASES UNDER

NDPS ACT-CUM-I ADDITIONAL DISTRICT AND SESSIONS JUDGE AT

VIZIANAGARAM.

Present:- Smt.G. RAJANI,

Special Judge for trial of cases under NDPS Act-cum-

I Additional District & Sessions Judge, Vizianagaram

Wednesday, this the 20th day of December, 2023

N.D.P.S. SESSIONS CASE No. 15 of 2020

Name of the Complainant :State represented by the Inspector of Police, Kothavalasa

Name of the accused :1. Challa Rahul Reddy, S/o. Venkata Ramana Reddy, 21 years, 4th years Genetics Student in SRM College, Chennai, R/o. F.No.1011, Maple Block, Rain Tree Part, Opp. ANU, Guntur.

2. Bogyam Saikiran, S/o. Subbarao, 19 years, 2nd year Degree, Vignan College, Guntur, r/o. H.No.3/2, Vidhyanagar, 2nd line, Guntur

3. Kommula Saisumanth, S/o. Subbarao 19 years, 2nd year B.Tech in V.R.Siddhardha college, Vijayawada.

Charges Under Section 8(c) r/w 20(b)(ii)(B) of N.D.P.S. :Act, 1985.

Plea of the accused : Accused pleaded not guilty Finding of the Judge :Accused Nos. 1 to 3 are found not guilty Sentence of order : IN THE RESULT, the accused Nos 1 to 3 are found not guilty for the offence punishable under Sec.8(c) r/w 20(b)(ii)(B) of the NDPS Act, and accordingly they are acquitted under Sec.235(1) Cr.P.C. The accused Nos 1 to 3 are directed to execute personal bonds as per the provisions under

Sec.437-A Cr.P.C.

M.Os 1 and 2 (samples) shall be destroyed after expiry of appeal time. M.O.3 car bearing No. AP 07 XA T/R 7879 which is given in interim custody shall be kept in the custody of the person who was given interim 2 custody and he shall not alienate or dispose off the same since the investigation with regard to the apprehension of Ashok and

Sidhu and proof of their complicity is pending as per the charge sheet. Likewise, M.Os 4 to 6 mobile phones shall also be preserved, subject to filing supplementary charge sheet against Ashok and Sidhu. Prosecution conducted by : Sri Bellana Ravi, Special Public Prosecutor.

Defence conducted by : Sri K.B.Parameswara Rao, Advocate for the accused

This case coming on 27.11.2023 for final hearing before me in the presence of Sri Bellana Ravi, Special Public Prosecutor for the complainant/State and Sri K.B.Parameswara Rao, Advocate for the accused; and after hearing both sides and the matter having been stood over for consideration till this day, this court delivered the following :-

J U D G M E N T

1. This case is filed by the Inspector of Police, Kothavalasa

Police Station alleging the offence under Sec.20(b)(ii)(B) r/w 8(c) of the NDPS

Act, in Crime No.140/2019 of Kothavalasa Police Station against the accused

Nos.1 to 3.

2.(i) As per the charge sheet, the brief averments of the prosecution case are that on 15.9.2019 in the early morning at about 03.00 hours, Sri R.Srinivasarao, Inspector of Police Kothavalasa P.S, along with

K.Satyam-PC 470, Sk.Khalik-PC 852, G.Kanakaraju-PC279 and A.Suryarao-ASI 1369 of Kothavalasa Police station (L.Ws 5 to 8) and Sri Pappu Hari,

Dy.Tahsildar (L.W.1) have intercepted one car bearing No. AP 07 XA T/R 7879 coming from Araku S.Kota road. They found accused Nos 1 to 3 viz., Challa

Rahul Reddy, Bogyam Saikiran, and Kommula Saisumanth respectively, travelling in the above said car in the presence of Lalam Radhakrishna (Lw 2) 3 and Kona Ganesh (LW 3) and the Deputy Tahsildar on verifying the car, they noticed some packets wrapped with tape, which were emanating ganja smell.

When the Dy. Tahsuildar questioned the accused Nos.1 to 3, they confessed that they are in possession of ganja. Immediately as per the provisions of the

NDPS Act, L.W.1 being the Dy. Tahsildar of Kothavalasa has informed them for their option for being searched whether by a Judicial Magistrate of the I Class, or any other Gazetted officer, on that they opted that they are willing to be searched by the Officer of Gazetted rank. Therefore, L.W.1 being Dy.

Tahsildar has questioned them by separating in them in the presence of

Lalam Radhakrishna and Kona Ganesh (L.Ws 2 and 3) for which they confessed that they are addicted to bad vices like drinking, smoking and therefore, they borrowed amounts from their friends and classmates for their luxuries. Due to the debts they financial dues to their friends and classmates. On 11.5.2019, at about 18.00 hours while A.1 was smoking near panshop, his villager and senior in college by name Ashok came there and offered him some work that he has to bring some ganja packets from Araku to Guntur in a car and he will pay him Rs.25,000/- in addition of giving

Rs.10,000/- towards journey expenditure. On that A.1 has agreed his offer and secured accused Nos. 2 and 3 and after their consent on 3.5.2019 at about 21.00 hours, Ashok gave them one car bearing No. AP 07 XA T/R 7879 and also Rs.10,000/- towards journey expenses. According to their previous plan, A.1 to A.3 have started from Guntur, before they started, Ashok called a person by name Siddu from his mobile phone No.7013868378 and informed him that three guys are coming to Araku for collecting ganja packets to bring them to Guntur and he gave the number of one person namely Siddhu bearing mobile No.934734673 for onward conversation at Araku. Later, on 14.5.2019, at about 08.00 hours A.1 to A.3 reached Visakhapatnam. They stayed till 14.00 hours, then A.1 has contacted Siddhu from his mobile 4

No.8919743398 and Siddhu has replied them to call him after reaching

Araku. Accordingly, they proceeded to Araku and reached at about 16.00 hours and again called Siddhu and he asked them to come back to S.Kota, therefore, they came to S.Kota and waited for him until 22.00 hours and again called him, he asked them to come to Sivalingapuram village, S.Kota-

Araku road and he will be there in red colour shirt, near an old man’s auto.

Therefore, they reached Sivalingapuram and one person met them saying that he is Siddhu and he placed 7 ganja packets in the backseat of the car.

At 12.30 hours in the mid-night they started and stopped the car at a lonely place for taking rest. They again started to Guntur and at about 3.00 hours they were caught by the police during vehicle checking.

(ii)On the above confession of the accused No.1 to 3, the

Dy. Tahsildar drafted the mediators report and Sri R.Srinivasarao, Inspector of

Police, Kothavalasa (LW 10) registered the same as crime No.140/2019 under

Sec.20(b)(ii)(B) r/w 8(c) of the NDPS Act. Later, during the course of investigation, the Inspector of Police has arrested the accused Nos 1 to 3 and subjected them to judicial remand on 15.5.2019 and seized the case property, kept in safe custody at the police station after making necessary entries in the property register. He also sent the material objects ie., samples from ganja packets to G.Srinivas, Govt. Chemical Examiner (LW 9) for chemical analysis to Excise Laboratory, Visakhapatnam. The Chemical

Examiner has analysed the samples at S.No.11020 as ganja and Sri

G.Govindarao, Inspector of Police, Kothavalasa (Lw 11) has filed the charge sheet showing the said Ashok and Siddhu as absconding and that he will file supplementary charge sheet after apprehending them. Therefore, the accused Nos 1 to 3 have committed the offence punishable under

Sec.ec.20(b)(ii)(B) r/w 8(c) of the NDPS Act. Hence, the charge.

5

3.The case was taken on file by my Predecessor in office for the offence punishable under Section 8 (c) r/w 20 (b) (ii) (B) of NDPS Act, 1985, against A.1 to A.3 and registered as NDPS S.C.No.15/2020.

4.On appearance of A.1 to A.3, copies of documents were furnished to them. Upon hearing both sides, on 3.2.2022, a charge under

Section 8 (c) r/w 20 (b) (ii) (B) of NDPS Act, 1985 was framed by my

Predecessor against the accused Nos.1 to 3, read over and explained to them in vernacular language, they pleaded not guilty and claimed to be tried.

5.The prosecution has examined P.Ws 1 to 6 and marked

Exs.P.1 to P.13 and M.Os.1 to 6, to establish the case of the prosecution.

6.After closure of prosecution side evidence, A.1 to A.3 were examined under section 313 Cr.P.C, explaining the incriminating material appearing against them in the evidence of prosecution witnesses. The case of accused is total denial and they stated that they have no defense.

7.Heard the arguments advanced by the Special Public

Prosecutor and the learned counsel for the accused.

8.Now the point for determination is, “Whether the prosecution has established the guilt of the accused Nos 1 to 3 for the offence punishable under Section 8 (c) r/w 20 (b) (ii) (B) of the N.D.P.S. Act, 1985 beyond reasonable doubt and whether the accused Nos.1 to 3 are liable for punishment for the said offence?”

9.POINT :- The prosecution to establish its case has examined P.Ws 1 to 6 and marked Exs.P.1 to P.13 and also M.Os 1 to 6. Ex.P.1 is the mediators report dated; 15.5.2019. Ex.P.2 is the signature of P.W.1 on

Ex.P.1. Ex.P.3 is the signature of P.W.2 on Ex.P.1. Ex.P.4 is the signature of 6

P.W.3 on Ex.P.1. Ex.P.5 is the signature of P.W.4 on Ex.P.1. Ex.P.6 is the signature of P.W.5 on Ex.P.1. Ex.P.7 is the signature of P.W.6 on Ex.P.1. Ex.P.8 is the FIR in Cr.No.140/2019 of Kothavalasa; Ex.P.9 is the letter of advice;

Ex.P.10 is the chemical analyst report, Ex.P.11 is the rough sketch, Ex.P.12 is the inventory report dated: 15.9.2020 and Ex.P.13 is the signature of P.W.6 on the charge sheet, and M.O.1 is the sample packet box containing 1A to 7A,

M.O.2 is the sample packets box containing 1B to 7B. M.O.3 is C-book of the car bearing No. AP 07 XA T/R 7879; M.O.4 is Samsung J8 mobile phone black colour, M.O.5 Vivo-07 black colour mobile phone, M.O.6 is Oppo F9 Pro red colour mobile phone.

10.(i)The contention of the learned Special Public

Prosecutor is that the concerned Dy.Tahsildar has conducted search and seized the contraband in the presence of the other mediators in this case and also the samples 1A to 7A and 1B to 7B in their presence. M.O.1 is the box sent to FSL, M.O.2 is the box containing referred samples and M.O.3 is the C- book of the car and M.Os 4 to 6 are the mobile phones.

(ii)The learned Special Public Prosecutor further contended that the appraiser has weighed the contraband and put his signature on the mediators report and P.W.4 who accompanied the raid party has corroborated the evidence of P.W.1 and the FIR number was reflected on the slips was obtained through phone. The evidence of P.W.5 also corroborates the evidence of P.W.1 and other witnesses, and in this case there is no need to issue Sec.50 notice and also written notice as search is not a personal search and it is only a search of vehicle. Therefore, the evidence of P.Ws 1 to 6 is enough to establish the guilt of the accused.

Hence, the accused are liable for punishment for the offence under Sec.8(c) r/w 20(b)(ii)(B) of the NDPS Act.

7

11.(i)On the contrary, the contention of the learned defense counsel is that the quantity involved in this case is non commercial quantity and there are many inconsistencies and descripancies in the evidence of prosecution witnesses and the Gazetted officer/Dy.Tahsildar who said to be on election duty on the date of the alleged offence in fact was not on election duty as admitted by him during cross-examination and the samples were not collected as per procedure and P.W.1 has categorically admitted during his cross-examination that he signed on the samples at his office which itself is enough that he was not present at the alleged scene of offence as on the date of the offence and therefore, the participation of P.W.1 in the raid is not proved and doubtful and his admission in the cross- examination clearly shows that he did not participate in the raid as Gazetted

Officer which is enough to prove that the prosecution did not follow the mandatory procedure by conducting search in the presence of Gazetted officer and as such, the prosecution case failed.

(ii)It is also the averment of the learned defense counsel that P.W.2 who claims to have accompanied cannot be a credit worthy witness since when P.W.1 himself admits that he signed the papers in the office, therefore, the question of P.W.2 accompanying P.W.1 to the alleged raid is doubtful and highly unbelievable.

(iii)As far as the evidence of appraiser ie., P.W.3 is concerned, the copies supplied to the accused do not bear the signature of the appraiser and no such weighing or mediatornama was conducted in the presence of the appraiser nor did he weigh any such packets on the alleged date of raid and his signature appearing on Ex.P.1/mediatornama is an afterthought by obtaining his signature on the prepared papers at the police station and therefore, the evidence of P.W.3 is also not believable.

8

(iv)Coming to the evidence of P.W.4 who said to be one of the raiding party, he claims that he signed at the spot but since P.W.1 himself signed in his office his evidence is also doubtful and so also the evidence of

P.W.5 to believe whether he participated in the raid or not.

(v)It is also the argument of the learned defense counsel that the evidence of the investigating officer ie., P.W.6 shows drastic difference with regard to the date of letter of advice/Ex.P.9 and sending the sample to the chemical analysis even as seen from the chemical analyst report i.e., Ex.P.10 only one sample packet was sent for chemical analyst, when it is the case of the prosecution that the police have seized samples in two sets from 1A to 7A and 1B to 7B of 100 grams each by taking 200 grams each from each packet allegedly seized as per the evidence of P.W.1 as well as the weighing person and other witnesses, sending only one sample packet to the chemical analyst and the chemical analyst report under Ex.P.10 with regard to analyzing only one sample packet Serial No.11020 throws any amount of doubt with regard to the prosecution case. Further, the crime number is mentioned on the samples whereas P.W.6 during cross- examination says that he registered FIR online but in Ex.P.1/mediators report there is no mention that the FIR was registered online and therefore, mentioning crime number on the sample packets itself creates a doubt that crime number was registered even before the alleged raid.

(vi)It is the further contention of the learned defense counsel that the accused said to have contacted one Ashok and the said

Ashok gave the phone number of one Sidhu in Araku to collect the contraband and transport the same from Araku, to Guntur and the said Ashok also gave phone number of Sidhu to A.1 whom the accused have contacted through phone on reaching Visakhapatnam as well as Araku, but in order to establish the same the Investigating Officer did not collect the call data 9 record of the phone numbers of the accused nor the said person Sidhu as well as Ashok. Therefore, the story as alleged by the prosecution that A.1 was entrusted to bring ganja from Araku to Guntur by Ashok is doubtful and the accused Nos.2 and 3 accompanying A.1 to Araku for the purpose of transporting ganja and caught by the raid party is also doubtful.

(vii)Moreover, the owner of the crime vehicle is not examined as a witness in this case and no record pertaining to the car was either seized by the police or produced before this court.

(viii) The investigating officer who conducted the alleged raid did not sign in Ex.P.1 mediators report except registering the crime which was admitted by P.W.6 himself during his cross-examination. Therefore, the participation of P.W.6 also in the raid is doubtful, as the prosecution gave three different versions with regard to the presence of the Inspector. Further, the Inspector ie., P.W.6 did not sign any paper allegedly written at the time of raid and even his evidence shows that he failed to follow the mandatory procedure under the Act. Therefore, the entire evidence of the prosecution shows that the participation of the raiding team and their involvement in conducting the raid and preparing the mediators report and seizure of contraband, samples etc., is doubtful. The Investigation Officer has failed to collect the technical evidence i.e., by collecting the call data to establish the nexus between the accused and the said persons who allegedly entrusted the accused to transport ganja. Even the chemical analyst report shows that the sample analysed to be ganja, but there is no confirmation that the sample is ganja. Therefore, the entire prosecution evidence appears to be created and the accused are falsely implicated in this case and therefore, in view of the infirmities in the prosecution case, the alleged raid and seizure of contraband/ganja from the possession of the accused is doubtful and it creates suspicion with regard to the authenticity of the prosecution case and 10 therefore, the accused are entitled for acquittal as the prosecution failed to prove its case against the accused for the alleged offence under sec. 8(c) r/w 20(b)((ii)(B) of the NDPS Act.

12.(i)For the above defense taken by the learned defense counsel, the prosecution has submitted that whenever there is election duty, the revenue people may work till handing over the boxes after election and

P.Ws 1 and 2 were on election duty on 14.5.2019 and therefore, the defense cannot find fault with the evidence of P.Ws 1 and 2. It is further contended by the learned Spl.PP that as per the Full Bench Judgment of the Hon’ble

Supreme Court reported in 2003 AIR SC 3642, it is not mandatory to issue

Sec.50 notice to the accused before searching since the search conducted by the raiding party is not a personal search but it is only the search of the vehicle. The learned Special Public Prosecutor has also submitted the Full

Bench Judgment of the Hon’ble Supreme Court in STATE OF PUNJAB VS.

BALVIR SINGH reported in 1999(6) SCC in support of the said contention.

(ii)It is also submitted by the learned Special Public

Prosecutor that despite the discrepancies in the evidence of the prosecution witnesses, the prosecution evidence cannot be rejected since it is for the accused to explain the possession of contraband with them by proving that the possession is not a conscious possession. Further, the copies supplied to the accused will bear the stamp and seal of the court, but, however, there is possibility of creating the said copies by obstructing the signature and date part, and therefore, the copies as contended by the learned defense counsel cannot be doubted and hence, the copies shown by the learned defense counsel during the cross-examination of the prosecution witnesses are doubtful in view of the possibility of tampering them.

(iii)It is also the contention of the learned PP that the

Investigation Officer has registered FIR online, and therefore, he mentioned 11 the number of FIR on the sample packets and contraband seized, it cannot be considered as absence of the investigation officer during the raid. The photographs as pointed by the learned defense counsel do not affect the prosecution case as they do not relate to the seizure of the contraband and as contended by the learned defense counsel the samples 1A to 7A and 1B to 7B do not contain signature of the accused is concerned that the box with sample in a polythene cover is sent for analysis as per Ex.P.9.

(iv)Further there is a specific conclusion by the chemical analyst that the sample which was sent is analysed as positive in analyzing narcotic drugs as is done in NDPS cases. Further, the sample was sent on 8.5.2019 as contended by the learned defense counsel, as seen on Ex.P.10 chemical analyst report the date might have been mentioned wrongly since in fact the samples were sent on 14.5.2019 only to the chemical examiner for analysis for which the chemical analyst has issued report dated 21.6.2019 analysing the sample as ganja. As far as, not finding the signature of the appraiser on the documents supplied to the accused is concerned, it is only a

Photostat copy, confronted to P.W.3 for which there is possibility of tampering. As far as the presence of P.W.1 is concerned he was very much present in the office after completion of election duty as it is common when they are posted for election duties as they have to stay in the office till handing over the boxes’ and as such, the contention of the learned defense counsel that P.W.1 was not on election duty on that day cannot be accepted.

(v)Further, there is no need for the prosecution to prove that P.Ws 1 and 2 are on election duty on that day, but the only requirement to conduct search and seizure as per the NDPS Act, is that the person who is conducting search and seizure must be a Gazetted Officer and P.W.1 in this case being Dy.Tahsildar acting as incharge of Tahsildar is no other than a

Gazetted Officer and as such, the search and seizure conducted by him 12 cannot be suspected. Further, M.Os 4 to 6 cell phones are seized only to prove the presence of the accused and their personal property at the time of the raid and the SIM cards are very much present in the cell phones, and as such, the seizure of cell phones and not pasting any slips to the mobile phones, cannot be considered as lacunae and as contended by the learned defense counsel, that no photographs or videograph was taken at the scene of offence is concerned, the same is not mandatory.

(vi)P.W.3, the appraiser has categorically stated with regard to what he has done at the scene of offence by weighing the contraband and separating the samples after taking samples separately, P.Ws 4 and 5 have supported the same and P.W.5 who is the scribe of Ex.P.1 has also identified his writing on Ex.P.1 and specifically mentioned that after reading over the contents only the accused have signed on Ex.P.1 and there is no possibility regarding mentioning of registering the FIR online in Ex.P.1.

Further, L.W.10/R.Srinivasarao is the Investigation Officer and he detected the case during his life time and his signature was very much present on Ex.P.1 and as such, the prosecution has established the case against the accused for the alleged offence under Sec. 8(c) r/w 20(B)(ii)(B) of the NDPS Act, and the ruling reported in 1988(2) Crime 298 clearly shows with regard to the mandatory presumption of illegal possession and also the ruling in 2016 SC 193 is useful to establish the culpable state of mind of the accused when they are found in possession of ganja and as the accused have failed to explain that the possession is not conscious possession and therefore, they are liable for punishment for the said offence and as per Sec.66 of the Act there is presumption of the documents also, it is also supported by the ruling in 1993 Crl.L.J. 363 SC 363 and therefore, in view of the above submissions made by the prosecution, the prosecution is able to establish the guilt of the accused and when there is no enmity between the prosecution witnesses and 13 the accused, the prosecution evidence cannot be doubted and it is for the accused who belong to Guntur to explain why they are in Araku with a vehicle at the relevant period and therefore, the accused are liable for punishment as the evidence on record clinchingly established the prosecution case.

13.It is the specific case of the prosecution that the accused with an intention to earn money easily and more particularly A.1 in order to discharge his personal debts has at the instance of his senior viz., Ashok along with his two other friends proceeded to Araku with the car provided by the said Ashok and also the offer made by Ashok to pay Rs.25,000/- if he brings ganja from Araku and also on payment of expenses of Rs.10,000/- by the said Ashok and accordingly he along with his friends proceeded to Araku and collected ganja from the named person Sidhu on the instructions of the said Ashok, at Sivalingapuram and while returning at midnight on 15.5.2019 early hours, he was intercepted by the police at the time of vehicle checking along with his friends and caught while in possession of ganja along with the car and as such, the accused are guilty of the offence alleged under sec. 8(c) r/w 20(b)(ii)(B) of the NDPS Act.

14.It is the contention of the learned defense counsel that even though the learned Special Public Prosecutor has vehemently contended regarding the guilt of the accused, the prosecution has failed to establish the guilt beyond reasonable doubt, the presence of P.W.1 in the office of P.W.1 at the time of raid on election duty is false and the inconsistencies in the evidence of P.Ws 1 to 3 and also the chemical examiner’s report and the discrepancy of the sample allegedly sent to chemical analysis does not corroborate the evidence of the prosecution witnesses, in view of the same the guilt of the accused is not proved beyond reasonable doubt by the prosecution and the accused are entitled for acquittal.

14

15.As seen from the charge sheet filed in this case it is clearly mentioned that the accused were caught while the Inspector of Police viz., Sri

R.Srinivasarao (LW 10) including K.Satyam-PC 470, Sk.Khalik-PC 852,

G.Kanakaraju-PC 279, and A.Suryarao, ASI 1368 of Kothavalasa Police station (Lws 5 to 8) have intercepted the car bearing No.AP 07 XA T/R 7879 and found A.1 to A.3 travelling in the said car and in the presence of Lalam

Radhakrishna-VRO (LW 2) and Kona Ganesh-VRA (LW 3) and also the Sri

P.Hari, Dy.Tahsildar (LW 1) the car was intercepted, which specifically shows that the Dy.Tahsildar (LW 1) of Kothavalasa who is examined as P.W.1 in this case was very much present along with police team when the car was intercepted by the raiding party. But, as seen from the oral evidence of P.W.1 he categorically stated that approximately around 3.00 a.m, on 15.5.2019 of general elections, their Tahsildar called him and informed that Kothavalasa police have found some ganja during raid and instructed him to go along with

VROs/mediators, as Gazetted officer and accordingly he proceeded to

Kothavalasa junction along with one VRO/Lalam Radha Krishna(LW 2) and one

VRA/Kona Ganesh (LW 3) which clearly shows that the presence of P.W.1 was secured after the accused were allegedly caught, but not at the time of checking the vehicles along with P.W.1 as shown in the charge sheet. P.W.1 has further categorically deposed that he revealed his identity to the accused and informed them that he came to enquire them and they reported no objection, on that he separated them and while enquiring the first person he revealed his name as Rahul Reddy (A.1) and further revealed that he is studying in Chennai in Genetic Engineering and belongs to Guntur and further revealed that as he is addicted to drinking and other vices and took loans from several persons, when his college senior Ashok enquired him one day as to why he was dull, he revealed him regarding his loans on that the said Ashok stated that he will entrust some work and if he performs the same 15 he can earn money and he agreed for the same and accordingly, Ashok informed that he will give Rs.25,000/- for that work besides providing vehicle and travelling expenses, if A.1 goes to Araku and brings ganja from Araku, on that he requested that he cannot go alone and Ashok has permitted him to take any person of his choice, accordingly he took Sai Kiran/A.2 and Sai

Sumanth/A.3 along with him and on providing vehicle ie., one Ford car and

Rs.10,000/- towards journey expenses by Ashok, he started from Guntur on 13.5.2019 and reached Visakhapatnam on the next day ie., 14.5.2019 and while going Ashok gave him one phone number of a person viz., Sidhu of

Araku and asked to contact him, and accordingly after reaching to

Visakhapatnam when he contacted Sidhu, he asked them to come to S.Kota initially and later he asked them to come to Sivalingapuram village stating that he is waiting with one auto with an old man with red shirt and when they reached there Sidhu came and filled the dicky of their car with seven packets of ganja and left, and later, on the intervening night of 14/15.5.2019 after taking some rest they started from S.Kota and around 2.30 a,m, when they started and reached near Kothavalasa around 3.00 a.m, they were caught by the police.

16. According to P.W.1 when he enquired the other two persons ie., A.2 and A.3 they have also revealed similar to A.1 and then they called for one weighing person viz., Gupta (PW 3) he came with electronic weighing machine, weighed the ganja packets, each packet was containing 1.5 KG to 1.20 K.G total amounting to 9.02 K.Gs. They have drawn samples of 200 grams each from each packet and separated into 100 grams each, gave numbers to the sample packets as 1A to 7A and 1B to 7B, affixed signed slips of himself, C.I, VRO and VRA and the box with 1A number is containing six sample packets which were sent to FSL. He also deposed that M.O.1 is the box containing sample box, M.O.2 is the referred samples box containing 16 referred samples with numbers 1B to 7B and they also checked the dash board of the car, found insurance copy and temporary C-book of the car, and

M.O.3 is the car M.Os 4 to 6 are the mobile phones of the accused which were seized along with other property and Ex.P.1 is the mediators report and

Ex.P.2 is his signature.

17.P.W.1 during cross-examination further stated that he was in office on that day night after completion of elections, but not on election duty and further stated that the document confronted to him i.e, copies of documents supplied to the accused, the copy of mediators report do not bear the date, month and year of raid. He further deposed that he did not issue any notice in writing to the accused nor obtained their consent and that the sample packets do not bear the signatures of the accused, neither in A series nor in B series and surprisingly deposed that he signed on the slips on the sample packets in his office and M.Os 4 to 6 cell phones are also do not bear any slips of either himself or the accused or the mediators or the raid party and the SIM cards are also not mentioned in the mediators report and that the signatures on M.Os 1 and 2 boxes are made by him in his office. Further, the Photostat copy of mediators report shown to him does not bear the signature of the person viz., Gupta (weighing person) who weighed the contraband and he did not impress his official stamp on the mediators report and the descriptive particulars of ganja are not mentioned in the mediators report by specifically mentioning as that of with seeds, flowers and tops and also that he did not obtain any weighing slip from the person who weighed the ganja, and no seals are affixed to the ganja seized by him in his presence.

18.While the evidence of P.W.1 stood as above, P.W.2 who is the VRO, who said to have accompanied P.W.1 during the raid upon receiving the phone call from his Tahsildar, he also deposed similar to P.W.1 in his chief examination by corroborating P.W.1. During cross-examination he also 17 deposed that he did not hand over any record to the police to show that he was on election duty on 14.05.2019/15.05.2019 and that he did not produce any copy of his routine duty before the police regarding his election duty. He further stated when the copies supplied to the accused were confronted to him, they do not show the date and kept blank, but, however, he stated that the date is noted on the top and further stated that the contents of the copy confronted to him do not bear the date, month and year of raid by the

Inspector of Police and they are kept blank. His cross-examination further shows that the mediators report was drafted by the police when the same is narrated by the accused and it is not mentioned in the mediators report whether it is read over and explained to the accused and admitted by them.

He further stated that the samples now confronted to him in A Series and B

Series do not bear the signatures of the accused and by the time they put their signatures on the sample packets, the crime number was not mentioned. He also deposed that M.Os 4 to 6 do not bear any identification slips with their signatures and there is no mention in the report that which cell number belongs to which of the accused and also the numbers of the SIM

Card of each cell separately. He further stated that in the mediators report the signature of the Inspector of Police is found only below the crime number and also does not show the weighing person’s name or his signature. He also stated that P.W.1 did not issue any notice in writing to the accused nor obtained their consent in writing and it is done orally only, even the weighing person did not furnish the weighing slips in writing with his signatures, and that his statement was not recorded by the police.

19.P.W.3 who is the appraiser has deposed during his evidence in corroboration to P.Ws 1 and 2 that he was called around 3.00 a.m, to 3.30 a.m, in the yer 2019 in May and accordingly he reached Kothavalasa junction and found the police along with one mixed maroon colour car, they took 18 seven packets from the car dicky and on their request he weighed and found

as 1 kg to 1.10 kgs and to 1.15 kgs, the total weight of all the packets was

approximately 7.20 K.Gs and he has also drawn samples of 100 grams each of two packets from each packet, weighed it and they were put in separate polythene covers and after weighing he handed over the packets to the police and he signed on the mediators report which is Ex.P.4. But, however, during cross-examination when the copy (which supplied to the accused) confronted by the learned defense counsel he stated that the copy of mediators report does not bear his signature. He further stated during cross- examination that except on page no.5 his signature was not there on in any other pages on Ex.P1 and his signature was not taken on the packets which he weighed and separated from 200 grams each and he denied the other suggestions regarding weighing and drawing of samples and signing in the mediators report.

20.P.W.4 is another Police Constable. According to him on the date of raid when the accused were caught at Kothavalasa junction, he was also one of the persons in the raiding party and he drafted the mediators report when the proceedings under Ex.P.1 were conducted in his presence and he also put his signature on Ex.P.1 which is Ex.P.5. During cross- examination he states that there is GD entry to show that he was on night rounds duty on that date along with the other constables. But, he does not know whether the GD entry was filed into court or not and also regarding whether the list of vehicles checked on that day was prepared or not. He further deposed that neither himself nor the accused have signed on the samples drawn and he did not sign even on M.Os 1 and 2, and further stated that the signatures on the chits affixed to M.Os 1 and 2 are made at the spot only and even the signatures with the punch chits found on the sample packets are made at the spot only and the Crime number was also mentioned 19 on the sample packets, Ex.P1/mediators report was scribed by their station constable, but the signature of the scribe is not found on Ex.P1.

21.P.W.5 is the scribe of Ex.P.1. According to him he is also a police constable of Kothavalasa police station and during the raid he accompanied the Inspector and raid team, at the time of raid and as stated by the accused and as per enquiry made by P.W.1, on their instructions he scribed the mediators report and also signed on the mediators report and along with the Inspector of Police, accused, P.Ws 1, 2, 3, L.W.3 and the other staff have signed on the mediators report and he identified the car as M.O.3 which was caught on 15.05.2019. During cross-examination he also deposed that a GD entry was made before they left for the raid, but the same is not filed the court and the list of vehicles checked on that day, was also not filed.

He deposed that the copy confronted by the counsel for the accused does not bear the date, month, year and time and P.W.1 did not serve any notice in writing to the accused for conducting search.

22.His further cross-examination is that Ex.P1 does not show his signature as scribe and further that the signature of P.W.3 is not shown under the heading as appraiser in Ex.P1 and does not show the signature of the appraiser and also the copy confronted does not bear the signature of the

Inspector of Police where the signatures of the mediators and the other witnesses are found. He further deposed that the slips affixed to the samples are prepared in the police station and the slips on all the samples do not bear the signatures of the accused and the slips affixed to MOs 1 and 2 are also prepared in the police station. Further he stated that MOs 4 to 6 (cell phones) do not bear any punch chits or signatures of the accused or the mediators and the SIM cards of the phones are not seized or mentioned in

Ex.P1 and there are no identification slips on MOs 4 to 6 and it is not 20 described in Ex.P1 that the ganja seized was consisting of flowers, stems and seeds and he denied the other suggestions.

23.P.W.6 is the Inspector of Police in this case and who filed charge sheet. According to him Sri R.Srinivasa Rao, Inspector of Police,

Kothavalasa has detected this case and conducted raid on 15.5.2019, while conducting vehicle checking in the early hours at Kothavalasa junction and found the accused with ganja in a car and he identified the signature of

R.Srinivasarao stating that the said R.Srinivasarao has conducted the mediators report and also seized the contraband in the presence of the mediators and Dy.Tahsildar, thereafter he seized the ganja and sent the same to Government Examiner for analysis under Ex.P.9/letter of advice which bears his signature and Ex.P.10 is the chemical analysis report and Ex.P.11 is the rough sketch drawn by R.Srinivasarao and the inventory report before the

Magistrate also bears the signature of R.Srinivasarao and P.W.6 filed charge

sheet after completion of investigation.

24.During cross-examination P.W.6 deposed that the papers used in page Nos. 1 to 4 are different from page No.5 of Ex.P.1, and that he cannot say whether the writing in page Nos. 1 to 4 and page no.5 are different or not, but to his appearance it looks like same. When the copy supplied to the accused is confronted to P.W.6 he deposed that he cannot say by seeing whether the said copy was supplied by the Court or not and there is possibility of screening it with a paper and taking xerox again and he denied the suggestion that the copies supplied to the accused are manipulated subsequently.

25.His further cross-examination shows that as per Ex.P.10 chemical examiner’s report, only one packet of 100 grams kept in a card board box was sent for analysis and the serial number was mentioned as 11020, in Ex.P.10 it is not mentioned how many serial number packets were 21 sent and how many packets were analyzed and which serial number packet was analyzed and he verified the samples before filing the charge sheet and he cannot say exactly how many samples were there. He further deposed during cross-examination that the FIR was registered in the police station and it was registered online and in Ex.P.1 the name of the scribe of Ex.P1 is not mentioned, he did not produce the property register maintained in

Kothavalasa Police station, which is a permanent record or filed its extract to show that the property seized in this case is kept in the safe custody of

Kothavalasa Police station or that in the charge sheet it is not mentioned that the property seized in this case was produced before nearest Magistrate soon after its seizure. Further with regard to the inventory report, he says in his cross-examination that no dates are mentioned in Ex.P.12/inventory report on which date the property was produced before the concerned Magistrate for inventory, and that he did not collect the call data for the cell phones seized,

before filing the charge sheet and he did not not collect the SIM cards of the

said cell phones nor collected the call data of the SIM cards of either Ashok or

Sidhu whom the accused have alleged to have contacted and he did not file any technical evidence to show that the accused have contacts with either

Ashok or Sidhu. He further stated that he has not enquired about the real owner of the car/MO3 nor recorded the statement of real owner and also did not seize any record pertaining to the booking of the car and also the person who booked the car and other details, and that it was not mentioned in the mediators report that the FIR was registered online.

26.The above inconsistencies as found during cross- examination of the prosecution witnesses though P.Ws 1, 2,3, 4 and 5 have categorically deposed with regard to the vehicle checking at Kothavalasa junction and finding the accused with car with ganja of seven packets in the car dicky, by corroborating each other’s evidence, the cross-examination of 22

P.W.1 though he contended that he went to Kothavalasa junction on the intimation received from the police and also as per the instructions of his

Tahsildar, his cross-examination clearly shows that the intimation given to the accused with regard to the search and seizure he being the Gazetted Officer that the intimation given and consent obtained by him is only oral, it also shows that he has signed on the sample packets in his office and the signature on M.Os 1 and 2 boxes (in which the sample packets kept) are made in his office. His cross-examination also shows that the sample packets do not bear the signature of the accused in the packets in A-series nor the packets in B-series bear the signatures of the accused. While he stated that he signed on the slips on the sample boxes in his office on M.Os 1 and 2 boxes. P.W.2 who is the VRO, who allegedly accompanied him says that the samples confronted to him in A series and B series do not bear the signatures of the accused, though he deposed in his chief examination that all the proceedings were conducted at the scene of offence and they have obtained the signatures of other raiding party including the Inspector of Police on the sample packets ie., M.Os 1 and 2 at the scene of offence. P.W.3 the weighing person also admits during cross-examination that his signatures are not taken on the sample packets which he weighed and separated from 200 grams to 100 grams each.

27.Further, P.W.4 who is the constable allegedly accompanied the raiding team also deposed that on the samples drawn on that day neither himself nor the accused have signed and the signatures on the chits affixed to M.Os 1 and 2 are made at the spot only, even the signatures with punch chits found on the sample packets are made at the spot only which is quite contrary to the evidence of P.W.1, who categorically admitted during cross- examination that his signatures on the sample packets as well as the boxes ie. M.Os 1 and 2 are made in his office. Contrary to the evidence of P.W4, 23

P.W.5 who is the scribe of Ex.P.1 categorically deposed during his cross- examination that the slips affixed to the samples are prepared in the police station and the slips on all the samples do not bear the signatures of the accused and the slips affixed to M.Os 1 and 2 are also prepared in the police station and M.Os 4 to 7 do not bear any panch chits or signatures of the accused or the mediators and the SIM cards of the phones are not seized and as mentioned in Ex.P.1 and there are no identification slips on M.Os 4 to 6.

The evidence of P.W.1 as well as P.W.5 who is the scribe of Ex.P.1/report during their cross-examination clearly shows that none of the samples allegedly seized contain the signatures of the accused and the slips affixed to the samples are prepared at the police station and they were affixed at the police station, which is contrary to the evidence of P.W.4 who claims to be one of the constables and part of the raiding party who categorically stated that the samples are seized at the spot only and the panch chits to the sample packets are affixed at the spot only.

28. These contradictory and inconsistent evidence of P.Ws 1, 2, 4 and 5 during their cross-examination creates a doubt whether any such raid as pleaded by the prosecution is conducted at the spot or whether any such contraband as alleged by the prosecution was seized at the spot when the accused were found in possession of ganja while transporting in the car, since the charge sheet filed by P.W.6 clearly shows that P.W.1 has also accompanied the raiding team at the time of raid for vehicle checking at 3.00 a.m. on 15.5.2019, whereas the evidence of P.Ws 1 and 2 shows that they were in their office on election duty after completion of election on that night they went to the spot on the instructions of their Tahsildar on receiving intimation from police with regard to finding the accused with a car and ganja at Kothavalasa checking point. Therefore, their evidence during chief examination and inconsistent answers with regard to the samples seized and 24 the signatures of the accused obtained whether at the spot or in the office of

P.W.1 or at the police station throws any amount of doubt with regard to the veracity of the prosecution case.

29.Further, P.W.6 who is the Inspector of Police has admitted during cross-examination that Sri R.Srinivasarao, Inspector of Police has sent the samples for chemical analysis under the letter of advice. As seen from the chemical analysis report under Ex.P.10 and the letter of advice under

Ex.P.9 and as per the evidence of P.W.6, the letter of advice was sent by

R.Srinivasarao, Inspector of Police who is no more and the date on the latter of advice shows 16.5.2019. But the chemical analysis report the date of receipt of samples by the chemical analyst shows that the substance was received on 8.5.2019 with seals correct and intact from the Inspector of

Police, Police Station Kothavalasa with his letter dated 14.5.2019 which is quite contrary to the letter of advice which is allegedly dated 16.5.2019 and also contrary to the evidence of P.W.6 himself since according to him the letter of advice was sent by R.Srinivasarao, Inspector of Police whereas the chemical analysis report shows that it was sent by the Inspector of Police,

Kothavalasa by his letter dated 14.5.2019 and the same was received by them on 8.5.2019 which is highly unbelievable since by that date, there was no raid and seizure of contraband as alleged by the prosecution from the possession of the accused. Even if it is considered that it is a typographical mistake the letter of advice which shows the date as 14.5.2019 is highly unbelievable since by that time there was no raid at all conducted by the investigation team as evident from the charge sheet as well as the evidence of P.Ws 1 to 6 which amounts to a major material discrepancy in the prosecution evidence.

30.Further, the further analysis made by the chemical examiner clearly shows that the chemical examiner received “a dry green 25 leafy substance with seeds, stalks and flowering tops having characteristic odour of “cannabis setiva Linn” weighs 100 grams in a polythene cover, kept in a card board box duly sealed in Cr.No.140/2019” which is highly unbelievable since according to the prosecution the samples alleged to have seized from the possession of the accused by P.Ws 1 to 5 are seven in number, numbered as 1A to 7A and the referred samples are numbered as 1B to 7 B if that is the case of the prosecution, the sample sent for analysis must be from Sl.No.1A to 7A instead of one sample packet of 100 grams received by the chemical examiner for analysis with S.No.110120 which is not found on any of the sample packets when examined by this court. Further, the analysis report also shows the description of the sample received as dry green leafy substance with seeds, stalks and flowering tops, whereas P.W.1 categorically stated that the contraband does not show the description particulars in the mediators report by specifically mentioning that the ganja seized is containing a particular leafy substance containing flowers, stalks, and stems. Therefore, whether the chemical analysis report under Ex.P.10 pertains to the ganja or sample allegedly seized from the accused or not is doubtful since it does not match the alleged samples seized from the accused nor the mediators report does show any descriptive particulars of the ganja and since the date mentioned regarding receipt of samples by the chemical analyst is much prior to the date of offence and therefore, any amount of doubt can be raised with regard to the alleged raid of the prosecution team,

31.Further, P.Ws 1, 5 and 6 more particularly P.W.6 who is the

Investigation Officer who filed charge sheet in this case has categorically deposed during cross-examination that even though they seized three cell phones from each one possessed by each accused which are marked as M.Os 4 to 6, they do not bear any panch chits and the details of SIM cards of the phones seized are mentioned in Ex.P.1 and there are no identification slips on 26

M.Os 4 to 6. Moreover, P.W.6 has also admitted in his cross-examination that he has not collected the call data for the cell phones seized, before filing the charge sheet and also has not sent the collected SIM cards of the cell phones for call data or atleast the SIM cards of either Ashok or Sidhu whom the accused have allegedly contacted and he did not file any technical evidence to show that the accused have contacts with either Ashok or Sidhu and he has not verified about the real owner of the car/M.O.3 nor recorded the statement of the real owner and he did not seize any record pertaining to booking of the car and also the person who booked that car, which clearly shows that there is no proof that the alleged cell phones seized under M.Os 4 to 6 are either collected from the accused or whether they relate to the accused in any way or not. Further, even to find out whether the accused have contacted the said Ashok and Sidhu with regard to ganja, the

Investigation Officer has neither collected any call data nor filed the same

before the court to connect the accused with the alleged offence.

32.Further, the investigation officer did not take any steps to either to investigate the case with regard to the involvement of the said

Ashok and Sidhu in this case, who said to be the real culprits behind supply and transportation of ganja by the accused. But, by leaving them away, he hastily filed the charge sheet against the accused without conducting proper investigation, without collecting call data to connect the accused with the said Ashok and Sidhu and also with the alleged offence and without obtaining or seizing the contraband as per the mandatory procedure. The absence of the signatures of the accused on the sample packets and admission of P.W.1 that the slips on the sample packets and on the boxes were signed in the office of P.W.1, which is contrary to the evidence of P.W.4 that they are collected and signed at the spot itself clearly shows that the prosecution has utterly failed to prove the alleged involvement of the accused in the offence.

27

Even though it is contended by the learned Special Public Prosecutor that there is no necessity to follow the mandatory procedure of issuance of notice under Sec.50 of the Act, to the accused since it is only checking of a vehicle but not a personal search and the SIM cards are very much available in M.Os 4 to 6, but that cannot be a ground to connect the accused to prove their culpability or their involvement in this case.

33.In view of the above discrepancies which amount to major lacunae in the prosecution evidence and the failure of the investigation officer to conduct investigation to know the real culprits in this case, and the failure of the prosecution witnesses to establish the real nexus between the contraband and the accused and also to establish their contacts with the said

Ashok and Sidhu and also in view of the inconsistent, contradictory evidence of P.Ws 1 to6 and also in view of the chemical analysis report which shows that only one sample was sent for analysis which was analyzed as ganja that too dated much prior to the alleged date of incident, the prosecution case, is doubtful and the prosecution has failed to prove the guilt of the accused for the offence alleged under sec. 8 (c) r/w 20(b)(ii)(B) of the NDPS Act, and the

Investigation Officer who filed the charge sheet without conducting proper investigation and also without making any attempt to trace out the real accused, is responsible for the improper investigation and filing charge sheet against the accused with defective investigation. Therefore, the accused Nos 1 to 3 are entitled for acquittal in view of the latches in the evidence of the prosecution witnesses. The point is answered accordingly.

34.IN THE RESULT, the accused Nos 1 to 3 are found not guilty for the offence punishable under Sec. 8(c) r/w 20(b)(ii)(B) of the NDPS Act, and accordingly they are acquitted under Sec.235(1) Cr.P.C. The accused Nos 1 to 3 are directed to execute personal bonds as per the provisions under

Sec.437-A Cr.P.C.

28

M.Os 1 and 2 (samples) shall be destroyed after the expiry of appeal time. M.O.3 car bearing No. AP 07 XA T/R 7879 which is given in interim custody shall be kept in the custody of the person who was given interim custody and he shall not alienate or dispose off the same since the investigation with regard to the apprehension of Ashok and Sidhu and proof of their complicity is pending as per the charge sheet. Likewise, M.Os 4 to 6 mobile phones shall also be preserved subject to filing supplementary charge sheet against Ashok and Sidhu.

Dictated to the Stenographer Grade I transcribed by him

corrected and pronounced by me in open court on this the 20 th day of December, 2023.

Sd/- G.Rajani

SPECIAL JUDGE FOR TRIAL OF CASES UNDER

N.D.P.S. ACT- CUM-I ADDITIONAL DISTRICT

AND SESSIONS JUDGE, VIZIANAGARAM.

APPENDIX OF EVIDENCE

Witnesses Examined

For Prosecution:-For Defence:-NONE P.W.1 : Papu Hari, Deputy Tahsildar

P.W.2 : Lalam Radhakrishna, VRO (mediator)

P.W.3 : Kandula Varaha Venkata Satya Sankara Gupta, (appraiser)

P.W.4 : Kolupuru Satyam, Police Constable

P.W.5 : G.Kanaka Raju, Police Constable

P.W.6 : G.Goivindarao, Inspector of Police

Exhibits Marked

For Prosecution:-

Ex.P.1Mediators report dated 15.9.2019

Ex.P.2Signature of P.W.1 on Ex.P.1

Ex.P.3Signature of P.W.2 on Ex.P.1

Ex.P.4Signature of P.W.3 on Ex.P.1

Ex.P.5Signature of P.W.4 on Ex.P.1

Ex.P.6Signature of P.W.5 on Ex.P.1

Ex.P.7Signature of P.W.6 on Ex.P.1 29

Ex.P.8Original FIR in Cr.No.140/2019

Ex.P.9Letter of advice

Ex.P.10 Chemical Analyst report

Ex.P.11 Rough sketch

Ex.P.12 Inventory report dated 15.9.2020

Ex.P.13 Signature of P.W.6

For Defence:-NIL

Material Objects Marked

M.O..1 : Sample packets box containing 1A to 7A

M.O.2 : Sample Packets box containing 1B to 7B

M.O.3 : Ford Eco Car AP 07 XA T/R 7879

M.O.4 : Samsung J8 black colour mobile phone

M.O.5 : Vivo-07 black colour mobile phone

M.O.6 : Oppo F9 Pro. Red colour

Sd/- G.Rajani

SPECIAL JUDGE FOR TRIAL OF CASES UNDER

N.D.P.S. ACT- CUM-I ADDITIONAL DISTRICT AND

SESSIONS JUDGE, VIZIANAGARAM.

Copy submitted to the Hon’ble Registrar (Judicial), Hon’ble High Court of Judicature at Amaravathi, (by way of C.D.).

Copies Communicated to :

1. The Special Public Prosecutor, Vizianagaram.

2. The District Collector, Vizianagaram.

3. The Superintendent of Police, Vizianagaram.

4. The S.H.O, Kothavalasa Police Station.

IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF CASES UNDER

NDPS ACT-CUM-I ADDITIONAL DISTRICT AND SESSIONS JUDGE AT

VIZIANAGARAM.

Present:- Smt.G. RAJANI,

Special Judge for trial of cases under NDPS Act-cum-

I Additional District & Sessions Judge, Vizianagaram

Wednesday, this the 20th day of December, 2023

N.D.P.S. SESSIONS CASE No. 15 of 2020

01Name of the complainant:State represented by the Inspector of Police, Kothavalasa 02Name of the accused:1. Challa Rahul Reddy, S/o. Venkata Ramana Reddy, 21 years, 4th years Genetics Student in SRM College, Chennai, R/o. F.No.1011, Maple Block, Rain Tree Part, Opp. ANU,Guntur.

2. Bogyam Saikiran, S/o. Subbarao, 19 years,2nd year Degree, Vignan College, Guntur, r/o. H.No.3/2, Vidhyanagar, 2nd line, Guntur

3. Kommula Saisumanth, S/o. Subbarao 19 years, 2nd year B.Tech in V.R.Siddhardha college, Vijayawada.

03Date of offence:15.09.2019 04Place of offence:Kothavalasa Junction, Kothavalasa village and mandal. 05Date of complaint:15.09.2019 06Date of Commitment:– 07Date of apprehension of25.01.2021 accused in this Court 08Whether the accused are inAccused are on bail. jail or on bail: 09Date of commencement of11.08.2023 trial: 10Date of closure of trial.30.11.2023 11Date of sentence or20.12.2023 Judgment:

12.Sentence or order IN THE RESULT, the accused Nos 1 to 3 are found not guilty for the offence punishable under Sec.8(c) r/w 20(b)(ii)(B) of the NDPS Act, and accordingly they are acquitted under Sec.235(1) Cr.P.C. The accused Nos 1 to 3 are directed to execute personal bonds as per the provisions under Sec.437-A Cr.P.C. M.Os 1 and 2 (samples) shall be destroyed after expiry of appeal time. M.O.3 car bearing No. AP 07 XA T/R 7879 which is given in interim custody shall be kept in the custody of the person who was given interim custody and he shall not alienate or dispose off the same since the investigation with regard to the apprehension of Ashok and Sidhu and proof of their complicity is pending as per the charge sheet. Likewise, M.Os 4 to 6 mobile phones shall also be preserved, subject to filing supplementary charge sheet against Ashok and Sidhu.

EXPLANATION FOR THE DELAY:-

The complainant filed this case against the accused Nos.1 to 3 for the offence punishable under Sec. 8(c) r/w 20(b)(ii) (B) of the NDPS Act, 1985, and this court being the Special Court to try the offences under NDPS

Act, has taken the case on file for the said offence against the accused Nos 1 to 3 on 3.11.2020. On 3.1.2022, on appearance of the accused Nos 1 to 3 charge under Sec. 8 (c) r/w 20(b)(ii)(B) of NDPS Act was framed. During the course of trial, P.Ws 1 to 6 are examined, Exs.P.1 to P.13 and M.Os.1 to 6 got marked. After closure of prosecution evidence, on 15.9.2023, the accused

Nos 1 to 3 were examined under Sec.313 Cr.P.C. Thereafter, arguments of both sides heard, and judgment pronounced on 20.12.2023, acquitting accused Nos 1 to 3, as aforesaid.

Sd/- G.Rajani

SPECIAL JUDGE FOR TRIAL OF CASES UNDER NDPS ACT

CUM I ADDITIONAL DISTRICT & SESSIONS JUDGE,

VIZIANAGARAM.

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IN THE COURT OF THE I ADDITIONAL DISTRICT JUDGE : VIZIANAGARAM

Present:- Smt. G.RAJANI, I Additional District Judge, Vizianagaram

Friday, this the 29th day of December, 2023

ORIGINAL SUIT NO. 108 of 2015

Between:-

Smt. Myneni Krishna Kumari, W/o. G.Krishna Rao, Hindu, aged 58 years, residing at 18-1-10, Jidduvari street, Kota Junction, Vizianagaram.

... PLAINTIFF

A n d :-

1. Kethinolla @ (Kethineni) Babu Naidu, S/o. Late Kesavulu Naidu, Hindu, aged 55 years, residing at 19-14-282, Raghavendranagar, Main Road, Tirupathi

2. Kethinolla @ (Kethineni) Jagadish Choudary, S/o. K.Babu Naidu aged 30 years, residing at 19-14-282, Raghavendranagar, Main Road, Tirupathi.

... DEFENDANTS

This suit coming on 13.12.2023 for final hearing before me in the presence of Sri V.Chandrasekhar, and R.Srinivasan, Advocates for the plaintiff and Sri Ch.Rajesh, Advocate for the defendants; having been stood over for consideration till this day, this court delivered the following:-

J U D G M E N T

1.This suit is filed to pass a decree for a sum of

Rs.2,69,73,150/-, by the plaintiff against the defendants with costs and subsequent rate of interest @ 18% p.a, from the date of filing the suit till the date of realisation.

2.(i)As per the averments of the plaint, the case of the plaintiff is that she is practicing as a gynecologist at Vizianagaram and she had a daughter by name Krishna Priya who is no more. While she was in search of a bridegroom for her daughter, the 2nd defendant was brought to her by a marriage bureau. After discussions it was initially agreed that the boy and girl talk to each other and then only the match shall be settled, as the 2 plaintiff’s daughter had a psychological disorder for which she is taking treatment. But, as on the date of the meeting for alliance, she was normal and taking pills as a part her treatment. The 2nd defendant being a doctor was explained about her condition and he has agreed to talk with the daughter of the plaintiff.

(ii)Accordingly, they both have talked twice with each other and finally the alliance was fixed along with lanchanams which is normal in every marriage and the marriage was performed on 9.2.2014 at Soumya

Function Hall at Hotel Mayura Vizianagaram, as per the Hindu rites and caste customs. Later, the 2nd defendant and the daughter of the plaintiff have put up their family at Vizianagaram i.e., in the 4th floor of the plaintiff's house. At the time of the marriage talks, the 1st defendant requested the plaintiff to finance for the Post Graduation of the 2nd defendant and agreed to repay the amount within a year and the plaintiff had to unwillingly agree for the said proposal as the amount being huge ie., Rs.1,79,00,000/- for the medical PG course. But, however, she sought some time to arrange for the funds and the 1st defendant has called the plaintiff suddenly and asked her that an extra seat has fell vacant and the same was placed in the NET and requested the plaintiff to arrange funds immediately, so that the 2nd defendant would save one year if he joins immediately.

(iii)Even though the plaintiff had no funds, she mortgaged her nursing home and secured the amount of Rs.1,25,00,000/- and paid to

MIMS (Sri Rama Educational Society) through RTGS on 20.2.2014 and 18.3.2014 and the remaining balance of Rs.45,00,000/- was paid in cash. The plaintiff requested to execute an MOU (Memorandum of Understanding) or promissory note in token of the amount adjusted but the defendants have stated that as they are her close relatives there is no necessity to execute any document and their word is more than sufficient. Considering that the 2nd defendant is her son in law, the plaintiff had to contend herself by the promise 3 made by the defendants, and the 2nd defendant has started pursuing post graduation in Pediatrics at MIMS.

(iv)After few months of the marriage, the 1st defendant and his wife Smt. Radha, came down to Vizianagaram to the plaintiff;s house and sought for Rs.60,00,000/- as hand loan on that day urgently as the creditors are pressurizing the 1st defendant, for which, the plaintiff has sought for some time as she does not have funds. Again the wife of the 1st defendant within no time, came to the plaintiff’s house and urged to arrange the amount immediately, else they will be in trouble. The daughter of the 1st defendant used to call the plaintiff and pressurize her to advance the amount required by her father, as he is in deep need of the same or else his image would be damaged if the amount is not paid and her married life too will be in trouble.

The plaintiff had informed the defendants that it is beyond her capacity to arrange such a huge amount and moreover it was not their understanding at the time of marriage and the matter was placed before the elders who settled the alliance and a local elder in the Town but they too failed to convince the defendants.

(v)Whileso, the 2nd defendant has suddenly developed an indifferent attitude towards the daughter of the plaintiff and started picking up quarrels with her for silly reasons and tried to pressurize the plaintiff to yield to his demands and finally, he was successful in his attempts as the daughter of the plaintiff became panic and was about to go into depression on the sudden changed behavior of the 2nd defendant. The defendant being well aware that the daughter of the plaintiff is very sensitive and knowingly he married her daughter with a promise to take care her as he is a doctor by profession, after getting thorough checkup of her daughter prior to the marriage. But, the 2nd defendant started threatening the plaintiff that he would discontinue his PG and go back to Tirupathi along with his wife and will not allow his wife even to talk with the plaintiff during her life time.

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(vi)The plaintiff being kept in a fix had to secure loan on her house at Visakhapatnam and another loan by pledging her gold ornaments and paid of Rs.20,00,000/- to the defendants on 26.11.2014, and

Rs.15,00,000/- on 13.5.2015 and promised to send Rs.1,00,000/- per month for the remaining amount, and she paid upto Rs.6,00,000/- @ Rs.1,00,000/- per month for six months starting from 21.1.2015 to 2nd June 2015 through

NEFT and thereby paid total amount of Rs.41,00,000/-. For the purpose of calculating interest the last payment of Rs.6,00,000/- on 3.6.2015 has been taken into consideration and for the amount of Rs.35,00,000/- the last date of payment ie., 13.1.2015 has been taken into account.

(vii)Later, it went well for a little while and the defendants, more particularly the 1st defendant started harassing the daughter of the plaintiff that she eats like a dog and Bakasura, walks like a man, etc., in a high pitch which rattle her daughter's mind severely and depressed her. The 2nd defendant forced the plaintiff's daughter to undergo weight loss treatment vigorously beyond her capacity, both physical as well as psychological. He suddenly picked up quarrel with her daughter and picked up his clothes and belongings and went away to Tirupathi stating that he will not come back.

The plaintiff has tried her level best for 7 long days to convince the 2nd defendant that he, in fit of anger doing so and requested him to come back but he bluntly refused stating that he will not change his decision, and later twice he demanded for divorce over phone. The plaintiff has believed the promise made by the 2nd defendant that he will take care of her daughter, but could not realize his colours till 24.6.2015 when he left the plaintiff’s daughter to her fate and went away.

(viii) Her daughter also had made number of calls and also sent text messages to the 2nd defendant expressing her care and love towards him, saying sorry to him and requested him to come back or at least take her back with him. After a couple of days of marriage, the 2nd defendant gave 5 plaintiff's daughter a slip which contains nine things she should follow incidentally; it contains that the plaintiff's daughter should do and promise that the 2nd defendant will not leave her. It is quite contrary to the said promise and the 2nd defendant did not respond to the phone calls and messages of the plaintiff's daughter for SEVEN days and when she made efforts to contact the 2nd defendant through another number, initially though the 2nd defendant picked up the phone but on hearing the voice of her daughter, he immediately gave the phone to the 1st defendant, who in turn shouted at the daughter of plaintiff for calling from another number and refused to give the phone back to the 2nd defendant who is just beside him, inspite of repeated requests made by her daughter. This incident has shattered the will of the daughter of the plaintiff and she realized that the 2nd defendant has wantonly left her and he is not going to come back and the plaintiff’s daughter got deeply hurt and on 2.7.2015 she has committed suicide which made the plaintiff dumb and speechless when the police came and questioned her about the cause of death.

(ix)The defendants when informed about the death of the plaintiff’s daughter, they came down and went away, after the final rites and the 1st defendant did not even care to say a few words of sympathy and left along with the 2nd defendant and the plaintiff could not recover from the shock for a couple of months which made her practice to go down and the defendants were very casual about the incident and started living their own life normally without even a pinch of pain in their heart.

(x)The plaintiff has placed the issue of repayment of amounts taken by the defendants before elders who were present at the time of settling the alliance but the defendants did not turn up. The plaintiff has advanced huge amounts, only with an intention that her daughter would be looked after carefully but on the contrary, she was tortured and ultimately it costed her life. The defendants are having properties in their names but they 6 are not moving even their little finger to repay the amount taken by them.

therefore, as the efforts made by the plaintiff to recover the amounts paid by her to the defendants on various dates ended in vain, she filed this suit for recovery of the said amounts.

3.(i)Upon service of summons, the defendants No.1 filed his written statement and the same has been adopted by the 2nd defendant.

The 1st defendant while denying the material averments raised in the plaint, contends that the very suit is not maintainable and filed with false, concocted versions on experimental basis. The plaintiff and her husband Krishnarao and son Vamsi Krishna have played fraud on the defendants and also played fraud on this court in filing the present litigation, he reserves his right to file

additional written statement at appropriate stage along with necessary

documents and also to seek damages for wrongful attachment of the plaint schedule property.

(ii)The plaintiff, her husband and son have committed criminal acts including cheating with criminal dishonest intention for extracting amounts, grabbing the property and spoiling the entire life of the 2nd defendant by disturbing the family of the 1st defendant, in order to avoid all the civil as well as criminal prosecution and legal action, the present suit is filed, the necessary prosecution was initiated against them and the defendants are reserving their right to claim damages. The plaintiff and her husband are wrong doers. The defendants have got counter claim against the plaintiff, her husband and others. The plaintiff has no locus standi to file the present suit and there is no privity of contract between the plaintiff and defendants and they are absolutely not liable for amount muchless the suit claim. There is no existing relationship of debtor/creditor and the plaintiff has never paid any amount to the defendants or on their behalf and hence, she is not entitled to any amount and the question of claiming interest is unknown to law.

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(iii)The plaintiff and her husband have misused the total funds, movable properties, valuable immovable properties of the defendants and they are liable for the same and appropriate civil and criminal proceedings have been initiated in Tirupati jurisdiction and their family members have played foul play against the life of the defendants.

(iv)It is further squabbled that since the date of furnishing particulars in the marriage bureau regarding her daughter Krishna Priya, the plaintiff has wrongly described the facts and suppressed the mental, physical, health and serious ailments of Krishna Priya, the defendants have never requested nor demanded any such amount nor the plaintiff has never paid any amounts to the defendants or on their behalf. The plaintiff and her husband are most irresponsible parents and by suppressing the element of Krishna

Priya that even though she is diagnosed by psychiatrists as schizophrenia, emotionally unstable, multiple personality disorder, bipolar disorder with mania and depression with symptoms of suicidal tendency, depression, excessive sleeping, weight gain, behavioural changes and treated by Dr.Gowri

Devi, MD, Psychiatry, Dr.Kalyan Chakravarthi, MD, Psychiatry, Dr.Jagadish, MD,

Psychiatry, Dr. Venkat Subramanyam, MD, Psychiatry, Dr.Lakshmi Raju,

Clinical Psychologist, and Dr.Himakar, M.D. Psychiatry, Vizag etc. But they deliberately suppressed the same and came out with their true colours after the death of Krishna Priya.

(v)The plaintiff forcibly, illegally and high handedly grabbed the properties belonging to the defendants and also created the situation with their influence for discontinuation of P.G. course by the 2nd defendant and to make his life totally spoiled. The plaintiff has also misappropriated the total movable properties, income and immovable properties of Krishna Priya which she is liable to pay and failed and received amounts from the defendants and liable to pay the same. They have also committed manipulation, forgery, fabrication of records to get transfer of 8 properties and also to avail loans etc., without the knowledge of the defendants and the defendants are reserving their right to summon the concerned doctors and clinical lab reports during trial. It is further contended that the plaintiff and her family members taking undue advantage of the ailments of Krishna Priya withheld all the amounts due to the defendants even the interest payable @ Rs.1,00,000/- per month which was paid till June 2015 and thereafter abruptly stopped paying the same.

(vi)The defendants further denied all the allegations made in column III (v), (c), (d) (e) (f) (g)(h) and (i) of the plaint. It is further contended that there is no cause of action to file the suit and the cause of action is invented for the purpose of presenting the suit. All the documents filed are created and there is no jurisdiction to file the suit and the suit is not maintainable which may be decided as preliminary issue and the defendants have got counter claim against the plaintiff and their family members. The suit is devoid of merits and the same may be dismissed with exemplary costs.

4.On the above pleadings the following issues have been settled for trial by my learned predecessor.

i) Whether the plaintiff is entitled for recovery of Rs.2,69,73,150/- from the defendants?

ii) Whether the plaintiff is entitled to interest @ 18% p.a. on the principal amount as prayed for ?

iii) Whether there is privity of contract between the plaintiff and defendants?

iv) Whether the plaintiff and her family members played fraud on the defendants as alleged in the written statement ?

v) To what relief ?

5.On behalf of the plaintiff, the plaintiff got herself examined as P.W.1 and also examined P.Ws 2 and 3 and got marked Exs.A.1 to A.4. On behalf of the defendants, the 1st defendant got himself examined as D.W.1 and 9 the 2nd defendant got himself examined as D.W.2 and got marked Exs.B.1 to

B.9.

6.Heard both sides. Perused the record.

7.ISSUE NO. 3:- This issue relates to whether there is privity of contract between the plaintiff and the defendants.

(i)Both the parties have presented their case in respect of their contentions and P.W.1 who is the plaintiff herein has reproduced the same facts as mentioned in the plaint, while examining herself as P.W.1 and also P.Ws 2 and 3 who are her Manager and the Bank Manager of IDBI Bank, respectively.

(ii)The main contention raised by the learned counsel for the defendants is that in any suit the pleadings of the party are the foundation and what is stated by P.W.1 in her evidence is inconsistent and she did not support her own pleadings and documents. Further, there is no debtor and creditor relationship between the plaintiff and the defendants and there is no privity of contract between them. A marriage which was a contingent marriage as per Sec.31 of the Indian Contracts is defined which shows that a “contingent contract” is a contract to do or not to do something, if some event, collateral to such contract, does or does not happen”. In the definition of contingent contract, it is also illustrated by one illustration as follows:-

A contracts to pay to B Rs.10,000 if B’s house is burnt. This is a contingent contract. A contracts to pay to B Rs.10,000 if B’s house is burnt.

This is a contingent contract."

(iii)As per the definition of contingent contract given in

Sec.31 of the Indian Contracts Act, if a party agrees to pay a certain sum of money to other party upon happening of an event and if that event happens the contract will come into force and in the absence of happening that event such contract has no enforceability.

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(iv)The contention of the learned counsel for the defendants is that, the marriage is a contingent marriage as defined under

Sec.31 of the Indian Contracts Act, and further there is no privity of contract between the parties as there is no debtor and creditor relationship between plaintiff and the defendant and as such, the plaintiff cannot raise any claim for recovery of the amount.

(v)It is evident from common law that the promises made between the parties at the time of marriage to pay certain amount by the parents of the bridegroom and bride, fall under the definition of privity of contract as observed in Atkinson’s case. Atkinson’s case had established the rule of privity of contract as mainstay in English Law, here where the fathers of the bride and groom agreed with each other to pay certain sums to the groom, only the parties to the contract can sue but not a stranger and the bridegroom is a stranger to the contract between the fathers of bride and groom as there is privity of contract only between their fathers, such type of contract can be called as privity of contract in English Law and since we follow the common law, the privity of contract as defined in Atkinson’s Case, clearly applies and followed by the courts in India and what kind of promises are made and whether the party is entitled to enforce the same and under what circumstances, depends upon the case. But, however, the obligations at the of marriage between the parties more particularly the parents of the bride and bride groom fall under the definition of privity of contract as we follow the common law. In TWEEDDLE VS. ATKINSON 1861 (1) B & S 393, the doctrine is asserted by observing that “Before the wedding took place, father of the bridegroom and bride agreed with each other to pay certain sums of money after marriage. It is argued that the husband should have right to enforce the contract against them in the event of default and if there is any breach of agreement; it was held no, since there is privity of contract only between the fathers and the husband is a third party to the contract. The 11 above principle of common law observed in the above ruling defines not only the meaning of privity of contract but also the party who can enforce the same.

(vi)In this case, an oral agreement took place between the plaintiff and the defendants to support the 2nd defendant for his education more particularly for pursuing his PG course in medicine and according to the plaintiff, she has paid the amount of tuition fee for pursuing his PG course medicine in MIMS (Sri Rama Educational society) and accordingly, the 2nd defendant has pursued his PG course in the said institute after his marriage with her daughter and she paid the tuition fee in furtherance of their oral understanding at the time of the marriage. The contention of the learned counsel for the defendants is that nothing is paid in the form of dowry and as such, the plaintiff cannot lay claim to recover the said amount and there is no proof for the alleged payments made by the plaintiff at the time of marriage and as such, the plaintiff cannot recover the same as there is no privity of contract between them and the rulings filed by the learned counsel for the plaintiff are not applicable as there is no privity of the contract. But, however, as discussed by me above, the promises at the time of marriage between the father/parents of the bride and father/parents of the bridegroom are contracts of such a nature which are enforceable only between themselves in which case it falls under the doctrine of privity of contract and there is no force in the contention raised by the learned counsel for the defendants, when there is a privity of contract between the parties and whether the plaintiff has paid any such amount to the defendants as per their oral contract or agreement will be discussed in the next following issue. But, however, the understanding between the parties ie., plaintiff and defendants clearly shows that it is nothing but an oral contract which amounts to privity of contract between the parties. Therefore, this issue is answered accordingly in favour of the plaintiff and against the defendants.

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8.ISSUE NO.4:- This issue relates to whether the plaintiff and her family members played fraud on the defendants as alleged in the written statement.

(i)The contention of the learned counsel for the defendants is that the plaintiff and her family members have played fraud on the defendants by suppressing the health condition of her daughter Krishna

Priya with an evil intention and motive by suppressing the nature of disease of

Krishna Priya and her treatment with several doctors prior to and after the death of Krishna Priya who is diagnosed by psychiatristas schizophrenia, emotionally unpleasant, multiple personality disorder, bipolar disease with mania and depression for which there will be symptoms of suicidal tendency depression, excessive sleeping weight gain, behavioural changes with altered and abnormal behavior and the daughter of the plaintiff has been under the treatment of six doctors for schizophrenia treatment and also she took treatment at Bangalur as well as Vizag for the psychiatric condition of her daughter and only after the death of Krishna Priya, the plaintiff and her family members have come out with truth. Further, the plaintiff forcibly, illegally, high handedly grabbed the property of the defendants and created situation by their influence discontinuation of PG by the 2nd defendant and made his life totally spoiled, therefore, all the documents filed by the plaintiff are false and created as the plaintiff had played fraud on the defendants by suppressing the health condition of her daughter.

(ii)On the other hand, the contention of the plaintiff in the plaint as well as her chief affidavit is that her daughter Krishna Priya got match of the 2nd defendant through a marriage bureau and it was initially agreed after discussions that the boy and girl shall talk to each other and then only the match shall be settled as the plaintiff’s daughter had a psychological disorder for which she has taken treatment, but as on the date of the meeting for alliance she was normal and was taking pills in the course of her 13 treatment. The 2nd defendant being a doctor was explained about her condition and he has agreed to talk with the daughter of the plaintiff.

Accordingly, the boy and girl have talked twice with each other and ultimately the alliance was fixed. The plaintiff in her evidence has reiterated the same.

Whether any fraud is played upon the defendants by the family members of the plaintiff, has to be seen from the cross-examination of D.W.1 as well as

D.W.2.

(iii)D.W.1 during cross-examination has categorically stated that his daughter in law becomes emotional for every small issue. He denied the suggestion that he is not aware of the psychological condition of the plaintiff’s daughter, but, however, he further admitted during cross- examination that prior to fixation of marriage himself, his wife and his son came to Vizianagaram and the alliance was arranged at Visakhapatnam, his son (2nd defendant) and the plaintiff’s daughter had a private talk prior to fixation of marriage between them, which clearly supports the contention of the plaintiff that prior to marriage itself she has stated to the defendants that the bride and bride-groom shall meet and talk to each other. Accordingly they met twice and after that only the marriage alliance was fixed. Further, D.W.2 the husband of the Krishna Priya, though initially stated in his cross- examination he did not talk to the daughter of the plaintiff, but he saw her only, but he further stated that after he gave consent the alliance was fixed.

He also admitted that his wife is sensitive and she is emotional for every issue and used to go into depression, and claimed ignorance stating that he does not know whether he did not answer the calls received from his wife and she used to become emotional and further stated that his wife used to sleep a lot as she is suffering from schizophrenia disease which clearly shows that even though it is contended by the defendants, they have knowledge about the disease of the daughter of the plaintiff that she is suffering from schizophrenia more particularly when the 2nd defendant is a doctor and he had private chat 14 with the deceased Krishna Priya prior to the marriage and after that only the marriage was fixed and when he knows that his wife is sensitive and she is suffering from schizophrenia and she used to sleep a lot and she becomes emotional for every issue and go into depression, he cannot say that being a doctor he is not aware or he could not sense the disease of the said Krishna

Priya more particularly when he was having private talk with her prior to fixing of the marriage. Further, even though it is suggested to D.W.1 who stated in his cross-examination that the girl was shown in a dark room in which there was no light (dim light), it was further suggested that the marriage looks were arranged in hotel in a room which clearly shows that the said answer is elicited during cross-examination of P.W.1 only to prove that the plaintiff and her family members have played fraud upon the defendants, but, in view of the admissions of D.Ws 1 and 2 during cross-examination, the question of suppressing the fact of the health of Krishna Priya to the defendant or suppressing the mental and psychological condition of Krishna

Priya does not arise, more particularly when D.W.2 is a doctor. Further, if really, this contention of the defendants is true, there is nothing prevented them to place the issue before the elders of the marriage that the plaintiff has suppressed the health condition of her daughter and her daughter was given in marriage to the 2nd defendant by playing fraud, but no such attempt is made by the defendants and they kept quiet without raising their voice, when they alleged playing of fraud by suppressing the health condition of Krishna

Priya to the defendants prior to the marriage and all these things came out only after the death of Krishna Priya more particularly when this suit is filed for recovery of amounts. Therefore, there is no force in the contention that the plaintiff and her family members have played fraud upon the defendants as alleged in the written statement. Hence, this issue is answered as against the defendants and in favour of the plaintiff.

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9.ISSUE NOS. 1 AND 2:- These two issues relate to whether the plaintiff is entitled for recovery of amount of Rs.2,69,73,150/- and also interest @ 18% p.a, on the principal amount as prayed for.

(i)The entire contention of the plaintiff in this suit is that the plaintiff had a daughter viz., Krishna Priya who is suffering from mental and psychological disorder, therefore, in order to secure the life of her daughter when the alliance of the 2nd defendant came through marriage bureau, she has accepted for the same, by revealing the mental condition of her daughter and also as the 2nd defendant is doctor so that he can take care of her daughter and according to the plaintiff, after the defendants have agreed for the alliance after revealing the mental condition only, the other lanchanams were fixed between the parties. The 2nd defendant and daughter of the plaintiff have set up their family at Vizianagaram in the 4th floor of the plaintiff’s house after the marriage and at the time of formal talks regarding marriage, the 1st defendant has requested the plaintiff to finance for the PG course of the 2nd defendant and agreed to repay the amount within a year for which the plaintiff had unwillingly agreed, despite the amount being huge i.e.,

Rs.1,75,00,000/- for the PG medical course. But, however, she agreed to advance the said amount by seeking some time to arrange for funds, but suddenly the 1st defendant called the plaintiff and informed her that an extra seat fell vacant which was placed in the NET and requested the plaintiff to arrange the funds immediately in which case the 2nd defendant would be saving one year if he joins immediately. Having left with no other option the plaintiff had mortgaged her nursing home and secured the amount and paid

Rs.1,25,00,000/- to MIMS (Sri Rama Educational Society) through RTGS on 20.3.2014 and 18.3.2014 and the remaining amount of Rs.45,00,000/- was paid in cash on 18.3.2014 and requested the defendants to execute a memorandum of understanding (MOU) or promissory note for which they 16 convinced her as they are her close relatives, there is no necessity and their word is more than sufficient and she believed the said promise made by them.

(ii)To establish the same, the plaintiff during her evidence as P.W.1 has marked Exs.A.1 to A.4 documents more particularly Ex.A.4 is the bank statement of the plaintiff of Union Bank of India and the entries dated 18.3.2014 show that an amount of Rs.60,00,000/- was sent to Sri Rama

Educational Society, Vizianagaram through RTGS which is reflected in the statement of P.W.1 for the period from 10.3.2014 to 31.12.2014 of Union Bank of India. Ex.A.5 is the statement of P.W.1 of IDBI Bank, Vizianagaram, for the period from 1.1.2014 to 31.12.2014 and the entry dated 20.2.2014 shows that an amount of Rs.65,00,000/- is transferred through instrument (cheque)

No.57078 in favour of Rama Educational Society, Vizianagaram. The last page of Ex.A.5 shows that the plaintiff has obtained gold loan dated 20.11.2014 and transferred an amount of Rs.20,00,000/- through RTGS to K.Babunaidu ie., the 1st defendant and there are two more entries dated 20.11.2014, 12.12.2014 which shows that an amount of Rs.5,9,000/- and Rs.2,00,000/- was transferred to gold loan account. Therefore, the entries dated 18.3.2014 for

Rs.60,00,000/- in Ex.A.4 and the entry dated 20.2.2014 for Rs.65,00,000/- in

Ex.A.5 clearly show that an amount of Rs.1,25,00,000/- in total is transferred from the account of P.W.2 in favour of Rama Educational Society (MIMS) in which according to P.W.1, the 2nd defendant has joined in PG course after marriage which is not denied by the defendants. Though the defendants have raised the contention that there is no such understanding and no such amounts were paid by the plaintiff, P.W.2 who is the personal assistant of

P.W.1 has also stated during his cross-examination that the 2nd defendant got

MD Pediatrics seat and the defendants No.1 and 2 sought for amounts urgently so that they would repay the amount subsequently, which is enough to corroborate the evidence of P.W.1.

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(iii)It is the contention of the defendants that the bank statements are created and fabricated and no such amounts as contended by the plaintiff, are paid and the 2nd defendant has got seat in B-category which is a free seat. D.W.1 during cross-examination has admitted that his son has studied MBBS in China and after completion of his MBBS he passed the examination conducted by the Medical Council of India and joined for MD course in MIMS, Vizianagaram. He further stated that he does not know whether his son joined in the course in that institute under the Management quota or not and he has no idea whether his son appeared for entrance examination or not and also does not know that one has to pay money towards capitation fee which will be in crores of rupees under the

Management quota, which clearly shows that instead of denying the suggestion he claimed ignorance to the suggestion made by the plaintiff’s counsel which shows that he is suppressing something. He further stated that no money was transferred by the plaintiff to his account through RTGS/NEFT and to his knowledge, the amounts were credited in his account by the plaintiff which is highly ridiculous. Further, he clearly stated during cross- examination that his earnings are Rs.25,000/- to Rs.30,000/- per month as a teacher towards his salary in which he has to maintain his wife and two children and he also used to get Rs.1,20,000/- income from the land earlier. It is pertinent to note that a person of such a meager income with four family members including himself without there being any other source of income which gives him profound amount, cannot say that he does not know how he paid the amount for the PG course of his son and there is no force in his contention that the document ie., bank statement which contains the counter signature of the bank people is created by crediting amounts in his account by the plaintiff. Though he denied the suggestion that the plaintiff paid

Rs.1,25,00,000/- on 20.2.2014 and Rs.45,00,000/- on 18.3.2014 to MIMS,

Vizianagaram towards capitation fee for PG seat, but he specifically admitted 18 that his son joined MD pediatrics at MIMS, Vizianagaram, but he did not file his bank statement or any other proof to show how he himself has arranged the funds from his income or sources for doing PG course for his son in MIMS

Hospital, Vizianagaram.

(iv)The cross-examination of D.W.2 also clearly shows that he joined PG course in MIMS Hospital, Vizianagaram (Sri Rama Educational

Society) and by appearing NEET examination he secured PG seat under B category and he has to pay Rs.5,00,000/- towards fee in the first year PG and he got admission directly since there are seats available in B category, it is a direct admission without counseling, and he further stated that one will get seat through counseling only free seat under A category, which clearly shows that the 2nd defendant got seat in B category which is a paid seat but not a free seat. Though he denied the suggestion that he got seat under B category he has to pay Rs.1.7 crores but got a seat under B category only and he specifically admitted that he cannot file the record to show the payment of

Rs.5,00,000/- towards first year PG, paid by him, but, however, he admitted that he did his first year PG while he was staying in the pent house of P.W.1, and when he was confronted with three receipts under Ex.A.2 by the counsel for the plaintiff, he simply stated that they are fabricated, for which he did not file any proof. Further, D.W.1 has categorically admitted that his son did not get a seat in Management quota, which shows that D.W.2 did not get free seat either in management quota nor the PG seat in B category is free of cost and without counselling, which clearly shows that both the defendants are speaking falsehood with regard to how the 2nd defendant got seat in B category which is a paid seat and how he is able to pursue the same without paying capitation fees. On the contrary, the receipt filed by the plaintiff under

Ex.A.2 and the entries of her bank statement under Exs.A.4 and A.5 clearly establish that the amounts were transferred from her bank account to a tune of Rs.1.25 crores and also in favour of MIMS (Sri Rama Educational Society) 19 which is a capitation fee paid by her for the PG course to the 2nd defendant. It is not the case of the defendants that some other person of plaintiff’s family or relative are studying PG course in MIMS Hospital and she has transferred the said amount for their study and no such proof is filed by the defendants. The 2nd defendant also categorically admitted during cross examination that none of the family members or relatives of the plaintiff are pursuing either MBBS or

PG in MIMS Hospital, which clearly establishes that it is the plaintiff who paid the capitation fees for the 2nd defendant to pursue his PG course after his marriage with her daughter Krishna Priya and the failure of defendants to produce any document to prove that it is the defendants who paid the capitation fee for the studies of D.W.2 clearly establishes that they do not have any proof for the same and the admission of D.W.1 during his cross- examination with regard to his yearly meager income of Rs.25,000/- to

Rs.30,000/- towards his salary besides Rs.1,20,000/- per year as agricultural income is enough for paying capitation for the studies of his son in the PG course at MIMS Hospital, Vizianagaram. On the other hand, it is clearly proved not only by the evidence of P.W.1 but also through Exs.A.4 and A.5 that it is the plaintiff who paid the amount for the 2nd defendant to pursue his PG course at MIMS Hospital, Vizianagaram and the admission of D.W.2 during his cross-examination that himself and the daughter of the plaintiff lived at

Vizianagaram for a period of one year and he and the plaintiff’s daughter used to live in the 4th floor of the plaintiff’s house after the marriage and he used to pursue PG course in MIMS Hospital, Vizianagaram, also gives strength to the contention of the plaintiff in this regard. Therefore, the plaintiff is able to establish that she paid the amount for capitation fees for the PG course of the 2nd defendant in MIMS Hospital, by filing her bank statements.

10.It is also the case of the plaintiff that after few months after the marriage, the 1st defendant and his wife suddenly came to their house at

Vizianagaram and sought for Rs.60,00,000/- as hand loan as the same is 20 urgently needed to discharge their debt as their creditors are pressurizing the 1st defendant. But, as she sought for some time they went away and within no time, they came back and pleaded to arrange the amount and the daughter of the 1st defendant also used to call her and pressurize for the amount, but as she expressed that it is beyond her capacity, the 2nd defendant suddenly developed indifference towards her daughter and started picking up quarrels with her for silly reasons only to pressurize the plaintiff to yield to his demands, but, however, by keeping in view of the welfare of her daughter, as the 2nd defendant has threatened that he would discontinue the PG course and go back to Tirupathi along with his wife and will not allow her to talk even during her life time, she had to secure amount on her house at

Visakhapatnam and also gold loan and paid a sum of Rs.35,00,000/- to the defendants and also promised to send Rs.1,00,000/- per month for the remaining amount and accordingly she has transferred an amount of

Rs.45,00,000/- in total to the defendant ie., to the account of the 1st defendant for which she has also filed the bank statement under Ex.A.1. Ex.A.1 pertains to the account of the plaintiff in IDBI bank, Vizianagaram, for the period from 10.11.2014 to 17.6.2015 in which the entry dated 3.6.2015 shows

Rs.1,00,000/- is transferred through NEFT to K.Babunaidu ie., the 1st defendant and the entry dated 6.5.2015 shows an amount of Rs.5,25,000/- is transferred to MIMS, Nellimarla and entry dated 4.5.2015 shows an amount of

Rs.1,00,000/- is sent through NEFT to K.Babunaidu ie., the 1st defendant, the entry dated 2.4.2015 shows that an amount of Rs.1,00,000/- was sent through

NEFT to K.Babunaidu ie., the 1st defendant and the entries dated 2.2.2015 and 21.1.2015 an amount of Rs.1,00,000/- each was transferred through NEFT to

K.Babunaidu ie., the 1st defendant and the entry dated 13.1.2015 shows an amount of Rs.15,00,000/- sent through RTGS to K.Babunaidu ie., the 1st defendant and also the entry dated 26.11.2014 shows an amount of

Rs.20,00,000/- was sent to K.Babunaidu ie., the 1st defendant through RTGS; 21 and the entry dated 19.11.2014 shows gold loan amount disbursement of

Rs.9,89,138 and Rs.8,80,200/- to her account. These entries in the bank statements of the plaintiff clearly show that she has been regularly transferring amount from her account to the account of the 1st defendant as well as to the account of MIMS, Nellimarla probably for the PG course of the 2nd defendant.

11.It is the contention of the defendants that the plaintiff has misused their properties and tried to grab their building and also stopped paying interest of Rs.1,00,000/- abruptly after the death of her daughter and they have a counter claim against the plaintiff and reserving their right to file

additional written statement and raise counter claim. But, however, there is

no whisper in the entire written statement of the defendants or in the evidence of D.Ws 1 and 2 that when and how much amount they have lent to the plaintiff in order to say that the plaintiff has been paying interest to them @ Rs.1,00,000/- per month and to show that she has suddenly stopped the said payment after the death of her daughter. They simply have thrown a stone in the dark as if it is the plaintiff who is indebted to them but not defendants who have taken amounts from her for the PG course of the 2nd defendant and also for their necessities to answer their creditors. But, they simply made a stray allegation in the written statement as if it is the plaintiff who is paying interest @ Rs.1,00,000/- to them for which they have neither filed any proof or document nor produced their bank statements or any other promissory note or document to show how and how much amount the plaintiff is indebted to them. Therefore, the case of the defendants in this regard appears to be a concocted story in order to avoid their liability to the plaintiff.

12. Further, it is admitted by D.W.1 during bhis cross- examination that an amount of Rs.1,00,000/- was deposited in Syndicate Bank and he has two accounts in his name and one among them is in Syndicate

Bank and another one is in State Bank of India. He also admitted that the 22 plaintiff has looked after the expenses of his son and wife at Vizianagaram when they stayed in the house of the plaintiff. He further admitted that he had not filed any counter claim in this case against the plaintiff herein though he made a mention of it in his written statement. It clearly shows that the plea of counter claim as raised by the defendants contending that the plaintiff has abruptly stopped paying the interest amount of Rs.1,00,000/- to them is a baseless plea. Further, D.W.2 (2nd defendant) has also admitted in his cross- examination that he himself did not give any loan to the plaintiff and he does not know whether his father gave any loan to the plaintiff and he does not know how they are entitled to claim interest amount from the plaintiff as stated in the written statement filed by them. He further stated in his cross- examination that the plaintiff has misused their building and she has taken money from his parents and the plaintiff might have taken money which was received as rent from their building. There is no basis or proof for the said claim made by the 2nd defendant. Further, he is also aware that he does not know how they are entitled to claim interest from the plaintiff as contended by the 1st defendant in his written statement. It clearly shows that it is a false claim raised by them in the written statement without filing any counter claim against the plaintiff, which is enough to disbelieve his version and that there is no such amount paid by the defendants or lent by the defendants to the plaintiff as alleged in their written statement. Though the defendants have tried to impress upon this court by showing that the plaintiff had executed a will and bequeathed property worth of Rs.6 crores, and in order to grab the property she kept all those properties with her with an intention to grab them, there is no force in the said contention and on the other hand the said statement is ridiculous since if at all any Will deed is executed it will come into force only after the death of the testator and when it is the plaintiff bequeathed her properties to her deceased daughter in order to secure her life, the question of herself trying to grab those properties does not arise.

23

Therefore, the allegations raised by the defendants in their written statement and also suggestions made to the plaintiff with regard to the Will deed and plaintiff’s intention to grab those properties which she herself allegedly bequeathed to her daughter appears to be only to impress upon this court that the plaintiff is a person who is trying to grab the properties of her daughter by suppressing the health condition of her daughter and also taking advantage of her daughter’s disease.

13.Further, a suggestion was made to P.W.1 during her cross- examination that even though her daughter is physically, mentally and psychologically bnot fit for marriage and she has ruined the life of her daughter and the 2nd defendant, which she has categorically denied saying that she knows the health condition of her daughter prior to the marriage, for which there is no pleading in the written statement and further it clearly shows that the allegation of the defendants that a mother is trying to ruin the life of a daughter who is mentally and psychologically not in a good condition more particularly when the mother is a doctor, appears to be ridiculous and trying to throw mud on the plaintiff and if at all she has any such intention she can as well keep her daughter in darkness and enjoy the property for herself and she does not venture to find a match to her daughter with an intention to secure the life of her daughter that she would live happily with a person if she pays more amount to that person by securing amounts for his education and also informing him the condition and disease of her daughter even prior to her marriage more particularly when the other person is doctor. The intention of a mother would be only to see that her child lives happily if she secures her life with a person who knows the disease and also a doctor so that she will live happily for the rest of her life as the person would understand and live amicably with her daughter. But, on the other hand, the defendants have made such an allegation against the plaintiff as if it is the plaintiff who has 24 ruined the life of her daughter by marrying her to the 2nd defendant and also that she has ruined the life of the 2nd defendant by performing that marriage.

14. Even according to the documents filed by the defendants,

Exs.B.1 to B.9, more particularly Ex.B.7/suicide note, the daughter of the plaintiff has specifically made a mention in the suicide note that neither her parents nor her husband nor her parents-in-law, are responsible for her death and only due to her mental condition and depression due to her disease she is committing suicide. Even though the defendants have filed some documents viz., FIR, postmortem examination report, and paper publications regarding the death of the deceased Krishna Priya etc., they are no way relevant to establish their innocence or to establish that the plaintiff did not pay any such amounts to them and also to establish that they did not receive any amounts or that the plaintiff has ruined the life of her daughter as well as the 2nd defendant. Further, the documents filed by the defendants are no no way relevant for establishing a civil case, as per the Indian Evidence Act. Further,

Exs.B.8 and B.9 clearly show that the 2nd defendant has discontinued his PG course without any reason probably after the death of the deceased, may be due to the reason that he did not get any support for continuing his PG course.

Further, D.W.2 has also admitted that he got married again and living happily with his wife and children. The documents filed by the plaintiff and the evidence of P.W.1 more particularly Ex.A.1, 4 and 5 clearly establish that the plaintiff has paid the amounts under Exs.A.1,4 and 5 to the defendants for pursuing PG course by the 2nd defendant and also towards hand loan to the 1st defendant for his personal necessity to answer his creditors.

15.Further, the learned counsel for the plaintiff has also filed rulings in support of the plaintiff’s case more particularly the ruling reported in

LAWS (APH) 1959 103) in Appeal No.4171954 in the case of

NANNAPANENI VENKATA SUBBARAO VS. THUMMALA BHUJANGAYYA

(DIED). In the above case the daughter of the plaintiff viz. Damayanthi was 25 married to the defendant and she died intestate and issueless on 28.8.1952, the plaintiff has instituted the suit for recovery of Rs.51, 506-9-7. According to the case pleaded in the plaint, the plaintiff gave a cash katnam of Rs.25,000/- to the defendant at the time of the marriage and announced a gift of 10 acres of land in Penumudi village as Pasupukunkuma to the bride; that subsequent to the marriage the defendant represented to him that he would prefer to purchase a land in his village and that in the years 1940 and 1941, he paid him two sums of Rs.5,000/- and Rs.6,000/- towards the value of the said land, and he also gave his daughter the jewels shown in schedules A and A1 and certain other presents in kind, such as silverware, brassware and furniture mentioned in schedule B and B.1 and several sums and the movables together with the accretions thereto which are in the possession of the defendant. The plaintiff asked for recovery of these various sums on the basis of a caste custom prevalent in the Kamma Community in the Andhra area and more particularly in the Districts of Krishna and Guntur. In that case while allowing the said appeal the Hon’ble High Court of Andhra Pradesh has held that,

The plaint sets up the custom upon which the claim for relief is based in the following manner:

"There has been an immemorial custom in the Kamma community in the Andhra area and particularly in the Districts of

Krishna and Guntur whereby if there is any separation between the husband and wife either because of misunderstandings or otherwise and in the case of the wife dying issueless and intestate, all presents made to either the husband or wife at the time of the marriage or subsequently by the bride's parents or bride's people should be returned along with the accretions to the parents or their heirs and that they do not descend on the husband".

11. “The parties to the suit belong to the Kamma community. The custom pleaded is in derogation of the ordinary rule of Hindu Law whereunder if a married woman dies without leaving issue, her

Stridhana of all descriptions except (sulka) goes, if her marriage took place in an approved form to her husband, It is not suggested that the marriage was in any other form, and so according to the 26 normal mode of devolution, the defendant would be entitled to all the Stridhana properties of his deceased wife. The departure from the normal mode of devolution is based on a custom which, according to the plaintiff, prevails in the Kamma community generally in Andhra Desa, and more particularly in the districts of

Krishna and Guntur.

12. Among the members of the Kamma community certain special customs have received indicia recognition. Of them is the custom of affiliating a son-in-law and giving him a share, called Illatom adoption, which has been held to be in vogue in the community,

So too, a custom among the Kamma families of Andhra Desa that if estrangement results between the wife and the husband, dowry and all other kinds of gifts and presents that were made to the bride-groom by the bride's people at the time of the marriage have to be handed back to the bride after rendering a complete account with interest by the bridegroom or his family, has been judicially recognised by a Division Bench of the Madras High Court, consisting of Subba Rao and Panchapakesa Ayyar, JJ., in

Parandhamayya v. Navarathna Sikhamani (1949) 1 Mad. L.J. 467:

(AIR 1949 Mad. 825).

The learned Judges held that this custom must have had Its origin in an attempt made by the Kamma community to stabilise the condition of a woman, who, for one reason or other, had to-live apart, from her husband; that it was conceived in the best interests of women, who would otherwise be put to grave hardships and untold miseries; that the custom was reasonable and not opposed to public policy and was really in the interests of an important section of the public”.

The other rulings filed by the learned counsel for the plaintiff viz., in the case of SRI DIPAK BISWAS VS. SMT.ADITI KAR (BISWAS) IN CRL.REV.

P.NO.27/2018 OF HIGH COURT OF TRIPURA DATED 23.4.2021; LAWS (DLH) 2012 7 493 in the case of PRADIP KUMAR DAS VS. UNION OF INDIA in W,.P(Crl) 338/2008, Crl.M.C.1001/2011 and Crl.M.A.3737/2011 dated 27.12.2012 of

Hon’ble High Court of Delhi, also support the case of the plaintiff which clearly

show more particularly the ruling of the A.P.High Court clearly shows that 27 there is a caste Chowdary community of Krishna and Guntur districts, which requires the bridegroom to return the amounts paid at the time of marriage towards dowry or subsequently as the amount is stridhana property of the girl which is given for the security of that woman.

16.Therefore, in the light of the above ruling also as the parties to this suit belong to Chowdary community the plaintiff is able to establish that she has not only paid the amount towards PG course capitation fees to her son-in-law ie., 2nd defendant but also advanced some amounts to the defendants on their request. As the defendants failed to establish that they never received any amount from the plaintiff and they failed to explain how they secured the seat for the 2nd defendant, free of cost and how the 2nd defendant has got seat in B category which is a paid seat, it inevitably leads to an inference not only by the evidence produced by the plaintiff but also through Exs.A.1, 4 and 5 also by way of admissions elicited during cross examination of D.Ws 1 and 2 that the plaintiff has paid the above amounts to the defendants No.1 and 2 only to secure the life of her daughter who is suffering from psychological disorder schizophrenia which is nothing but her stridhana as per their caste custom and the defendants have not been aware the psychological condition of the daughter of the plaintiff, is utter false and having received the said amounts from the plaintiff and as the daughter of the plaintiff has committed suicide due to her psychological condition, cannot now take multiple pleas to escape their liability since the said amount was paid by the plaintiff subsequent to the marriage in the form of capitation fees and also towards loan to the defendants to secure the life of her daughter and as such, there is no force in the contention raised by the learned counsel for the defendants that the defendants never received any amount or the plkaintiff is indebted to them, in order to say that they have counter claim over the plaintiff which they failed to establish. Therefore, the plaintiff is entitled to recover the suit amount as well as the interest on the said amount, 28 but however, @ 12% p.a. from the date of filing the suit till date of decree.

The issues are answered accordingly in favour of the plaintiff and against the defendants.

17.ISSUE NO.5:- IN THE RESULT, the suit is decreed against the defendants No.1 and 2 for Rs.2,69,73,150/- with costs and with subsequent interest @ 12% p.a. from the date of filing the suit till the date of decree and thereafter @ 6% p.a. from the date of decree till date of realisation on the principal amount of Rs.1,70,00,000/-.

Dictated to the Stenographer Gr.I, transcribed by him corrected and

pronounced by me in open court on this the 29 th day of December, 2023.

Sd/- G. Rajani

I ADDITIONAL DISTRICT JUDGE,

VIZIANAGARAM.

Appendix of evidence

Witnesses examined

For plaintiff:- For defendants:

P.W.1 : Myneni Krishna Kumari D.W.1: K.BABU NAIDU P.W.2 ;M.RamaraoD.W.2: K.Jjagadish Chowdary P.W.3 : G.Srinivas

Documents marked

For plaintiff:-

Ex.A.1Bank statement from 15.6.2015 Ex.A.2Receipts issued by MIMS Ex.A.3Marriage invitation card 9.12.2014 Ex.A.4Bank statement of Union Bank of India, Vizianagaram from 10.3.2014 to 13.12.2014 Ex.A.5Statement of IDBI Bank Limited, Vizianagaram from 1.1.2014 to 31.12.2014

For defendants:-

Ex.B.1Paper Publication dated: 3.7.2015 Published in Eenadu district edition, Vizianagaram, about death of Krishna Priya Ex.B.2Paper Publication dated 3.7.2015 Andhra Jyothi paper about death of Krishna Priya Ex.B.3Original medical record of D.1 Ex.B.4Attested copy of attendance report of D.2 Ex.B.5Cancellation of P.G admission of D.2 dated: 7.12.2018 Ex.B.6Attested copy of FIR in Cr.No.123/2015 of II town P.S, Vizianagaram Ex.B.7Attested copy of suicide note Ex.B.8Attested copy of postmortem report Ex.B.9Attested copy of final report.

Sd/- G.Rajani

I ADDITIONAL DISTRICT JUDGE,

VIZIANAGARAM.