1 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru
IN THE COURT OF I ADDITIONAL SESSIONS JUDGE
WEST GODAVARI : ELURU
PRESENT: Sri G.Rama Gopal, I Addl. District and Sessions Judge, West Godavari, Eluru
Tuesday, the 23rd day of April, 2024
NDPS SC.No. 05/2020
Between:
State: Inspector of Police, Kovvur Rural Circle, Kovvur, West Godavari District.…Complainant.
And
1. Myadari Veyendar @ Venu, S/o.Malliyya, 39 years, SC Mala by caste, native of Chinkodepaka Village, Regonda Mandal, earlier residing in new Raipura Village, Hanamakonda, Madikonda Village and Mandal, Warangal District, Telangana State.
2. Kakkerla Ramesh, S/o.Sankarayya, 57 years, Gowda by caste, R/o.Atmakuru Village and Mandal, now residing at Indiramma Colony, Rampur, Kummaripalem Panchayat, Khajipet Mandal, Warangal District, Telangana State.
3. Adigarla Ramu (Died).
4. Bypireddi Dorababu @ Dharma, S/o.Satyanarayana, 33 years, K.Velama by caste, R/o.Bypireddiopalem Village, Narsipatnam Mandal, Visakhapatnam District.
5. Konchada Santhosh, S/o.Chinnarao, 28 years, Kalinga by caste, R/o.Jadupalli Village, Melekutti Mandal, Srikakulam District.
6. Mekala Ramesh, S/o.Durgayya, 46 years, SC Madiga by caste, R/o.Hasanparthi Village and Mandal, Warangal District, Telangana State.
7. Bojja Haribabu, S/o.Chandrayya, 27 years, Mutrasi by caste, R/o.Yelakathurthi Village and Mandal, Warangal District, Telangana State.
8. Kudithadi Vinodh, S/o.Mallayya, 28 years, Are by caste, R/o.Chinthalapalli Village, Yelakathurthi Mandal, Warangal District, Telangana State.
9. Sunnayalatenkayala Jithendra (Died).
... The Accused.
(Case against A-3 and A-9 was abated as they died)
2 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru
This NDPS Sessions case coming on 19.4.2024 before me for hearing in the presence of Sri N. Ramu, learned Special Public Prosecutor for the Complainant, Mrs. G.Rohini, Advocate for Accused No.1, 2, 4 to 8; and
Accused 3 and 9 died during pendency of case, heard the arguments on both sides, and upon perusing the material available on record and having stood over for consideration till this day, this Court delivered the following:-
J U D G M E N T
The factual matrix of the prosecution case, leading to the arrest of the above accused and seizure of commercial quantity of Ganja of 320 Kgs., in Cr.No.70/2018 of Devarapalli Police Station, West Godavari for the offence punishable under Section 8(c) r/w. Section 20 (b)(ii)(C) of Narcotic
Drugs and Psychotropic Substances Act, 1985 (for brevity NDPS Act), by way of charge sheet filed by the Inspector of Police, Kovvur Rural Circle, Kovvur is that:
2. A-1 and A-2 are residents of Warangal District, Telangana State,
A-3 is a resident of D.Polavaram Village, Tuni Rural Mandal. A-1 and A-2 used to purchase ganja from Tuni agency area through A-3, and A-1 to A-3 with the help of A-4 and A-5 to A-9 used to illegally transport ganja from one state to another state for getting wrongful gain.
On 11th March, 2018, A-5 went to Tuni and met Adigarla Ramu (A-3), meanwhile A-4 reached there; they all went into a garden in Tuni, where they got loaded ganja in dickey of Indigo Car bearing No.AP 10 AD 1857; they started to Warangal; when the said car reached Rajahmundry, it was in trouble due some issues; on the information given by A-5, A-1 told him that he 3 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru would arrange another car by the next day morning; meanwhile, A-1 asked
A-3 to arrange some more ganja since one more car will come to Tuni to collect ganja; A-1 booked one car from Zoom Cars via online in the name of
A-6; on 13-3-2018, on the instructions of A-1, A-4 and A-6 to A-8 and
Sunnayalatenkayala Jithendra (A-9) went to Vizag by Innova car and took one
Ford Car, which was booked in Zoom Cars; then A-4, A-6 to A-8 and
Sunnayalatenkayala Jithendra (A-9) came to Tuni by the above two cars and met A-3 and Raju and got loaded the ganja in dickey of two cars; joined the same day at about 11.00 p.m., A-4, A-6 to A-8 and Sunnayalatenkayala
Jithendra (A-9) started from Tuni with loaded ganja cars, reached
Rajahmundry and met the A-5; from there all the six accused i.e., A-4, A-5,
A-6 to A-8 and Sunnayalatenkayala Jithendra (A-9) came to Devarapalli, took rest for a while; on 14-3-2018 at about 4.30 a.m., they started to proceed to
Eluru; meanwhile, on 14th March, 2018, on receipt of reliable information,
PW.8 – C.Sarath Raj Kumar, C.I. of Police, Kovvur Rural Circle, along with his staff and mediators, while conducting vehicle checking at Devarapalli Village on Kovvuru – Gundugolanu Highway, W.G. Dist., caught the above three cars i.e., Indigo Car bearing No.AP 10 AD 1857, Innova Car bearing No. AP 24 W 9009 and Ford Car bearing No. KA 03 AD 8238, along with the accused A-4 to
A-8 and Sunnayalatenkayala Jithendra (A-9), who were illegally transporting the prohibited ganja weighing about 320 Kgs. PW.8 interrogated A-4 to A-8 and
Sunnayalatenkayala Jithendra (A-9) and recorded their confessional statements in the presence of mediators i.e., P.W.4 – Kondapalli Venugopalarao and
Galinki Veera Raghavulu (L.W.7) and A-4 to A-8 and Sunnayalatenkayala 4 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru
Jithendra (A-9) voluntarily confessed the involvement of A-1, A-2 and Adigarla
Ramu (A-3) and the PW.8 seized the said 160 plastic packets weighing about 320 Kgs., of ganja, 3 crime vehicles, cash of Rs.1,100/- and 6 cell phones from the possession of the accused in the presence of above mediators, under the cover of mediators report, which was duly attested by the mediators, and PW.8 arrested A-4 to A-8 and Sunnayalatenkayala Jithendra (A-9).
PW.5 marked the seized 160 plastic packets of ganja as 1, 2, 3, 4, …… 160, drew 300 grams of ganja from each packet i.e., from top, middle and bottom, as samples, and packed in three polythene covers weighing about 100 grams each respectively and marked as 1-A, 1-B, 1-C, ….. 160-A, 160-B and 160-C, total 480 packets containing 48 Kgs., (480 X 100 grams) and pasted slips on each packet after getting signatures of P.W.5 – S.Pothu Raju, S.I. of Police and above two mediators.
On the strength of the mediators (Ex.P5), P.W.7 – P.Vasu, S.I. of Police, Devarapalli
P.S., registered a case in Cr.No.70/2018 under Sections 8(c) r/w.20(b)(ii)(c) of
NDPS Act of Devarapalli P.S., and submitted original FIR (Ex.P4) to the Court, and the arrested accused A-4 to A-8 and Sunnayalatenkayala Jithendra (A-9) were produced before the Court and got remanded them into judicial custody.
P.W.8 – C.I. of Police took up investigation and during the course of investigation, examined P.W.1 – Pallapu Srinu, P.W.2 – Shaik Ansary, P.W.3 – Karri
Ramana Reddy, Kadelli Veeraju (L.W.4) and Gugulothu Sujatha (L.W.5) and recorded their statements Sec.161 (3) Cr.P.C., Statement. During the course of further investigation, PW.8 caused enquiries regarding involvement of A-1 and A-2 in other crimes i.e., A1 and A2 were involved in Cr.No.171/2014 under Section 302
IPC., of Nalgonda P.S., A-2 was involved in Cr.No.114/2003 under Section 395 IPC., of Khajipet Pet P.S. A-3 obtained anticipatory bail vide Crl.M.P.No.420/2018 dated 5 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru 8-6-2018, from this Court. The PW.8 took A-4 and A-5 into police custody for a period of two days i.e., from 16-4-2018 to 17-4-2018 vide orders in
Crl.M.P.No.244/2018. On 28-4-2018, the PW.8 arrested A-1 in the presence of
mediators i.e., Galinki Veera Raghavulu (L.W.7) and P.W.6 – Pedapati Pandubabu, recorded his confessional statement in the presence of above mediators, and A-1 voluntarily confessed the involvement of A-2 to A-8 and Sunnayalatenkayala
Jithendra (A-9). On 12-5-2018, PW.8 arrested A-2 in the presence of above mediators, recorded his confessional statement in the presence of above mediators, and A-2 voluntarily confessed the involvement of A-1, Adigarla Ramu (A-3), A-4 to
A-8 and Sunnayalatenkayala Jithendra (A-9). P.W.8 addressed a letter to the concerned Road Transport Authorities with a request to furnish the address particulars and ownership of the crime vehicles and obtained reply from them. He also addressed a letter to Zoom Cars, Visakhapatnam requesting to furnish details of the car given to A-6 on 13-3-2018 via online booking.
On 16-4-2018, PW.8 prepared a letter of advice and sent 480 samples to the
Govt. Chemical Examiner, The Regional Pro. & Excise Laboratory, Kakinada for analysis and report, and obtained analysis report dated 20-4-2018, wherein, the
Chemical Examiner opined that the samples at Sl.No.7316 to 7855 are ganja.
Thereafter, on 11-7-2019, M.Suresh (L.W.14), C.I. of Police, Kovvur Rural
Circle took up further investigation; during the course of investigation, C.I. of Police constituted a team to apprehend the alleged accused Raju of Nathavaram Village of
Visakhapatnam District, but his efforts proved futile. After completion of investigation, charge sheet was filed by him against the accused. Hence, above charge against A-1 to A-9.
6 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru
3. One of my learned predecessors in office, took cognizance for the offence under Sec.8(C) r/w Sec.20(b)(ii)(c) of NDPS Act against A1 to A9.
4. A-3 and A-9 died and the case against A-3 and A-9 was abated as they died. On appearance of A-1, A-2 and A-4 to A-8, copies of documents were furnished to them under Sec.207 Cr.P.C., and they were examined under Sec.228 Cr.P.C., for the allegations made against them, and a charge under Section 8(c) r/w Section 20(b)(ii)(C) of NDPS Act was framed against them, read over and explained to them for which, they pleaded not guilty and claimed to be tried.
5. To substantiate the case, the prosecution examined PWs.1 to 8, and marked Exs.P.1 to P.9 and M.Os.1 to 8. P.Ws.1 to 3 are the alleged eye witnesses for the seizure of contraband, P.W.4 is the mediator in the cadre of
VRO for the arrest of the accused and seizure of contraband and vehicles vide
Ex.P-5, P.W.5 is the then Tahsildar in whose presence the police seized contraband and other property and arrested accused, P.W.6 is the mediator for arrested A-1 and A-2 vide Exs.P-6 and P-7 respectively, P.W.7 is the then
S.I. of Police, Devarapalli P.S., who accompanied P.W.8 and also registration of Ex.P-8 FIR., on the strength of Ex.P-5, P.W.8 is the C.I. of Police, who arrested the accused, seized conveyance and contraband of ganja and other properties from the possession of the accused and did part of investigation in this case.
7 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru
6. After the closure of prosecution evidence, the accused No. 1 and 3 to 8 were examined under Sec.313 Cr.P.C., regarding the incriminating material that is available against them, for which they denied and reported that they have no evidence in defence.
7. Heard the learned Special Public Prosecutor as well as the learned Counsel for the Accused. I have also carefully perused the oral and documentary evidence relied upon by the prosecution apart from bestowing my serious consideration to the rival contentions.
8. Now the point that would arise for determination is:
Whether the prosecution could bring home the guilt of
A-1, A2 and A4 to A-8 for the charge under Section 8(c)
r/w Section 20(b)(ii)(C) of NDPS Act beyond reasonable
doubt?
9. POINT:
Mrs. G.Rohini, learned Counsel for A-1, A2 and A4 to A-8 at the outset would submit that in cases under NDPS Act., there are certain operating presumptions under Section 35, presumption of culpable mental state and 54, presumption of possession, against the accused under the said
Act which bestows, burden of proof on the accused after initial discharge of burden by the Prosecution Agency, but the said presumptions can be rebutted by the accused in three ways : (1) From the prosecution evidence; (2) By way of cross-examination; and (3) By offering defence evidence, vide citation in
Nareshkumar @ Nitu Vs. State of Himachal Pradesh, 2017, and as such, the Prosecuting Agency, irrespective of the quantity of contraband of Ganja 8 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru seized, is bound to establish that the recovery is in accordance with the settled law i.e., the Prosecuting Agency has to establish legality of recovery by offering evidence strictly adhering to the mandatory provisions, failing which the sentence and conviction would be vitiated. She would further submit that the prosecution failed to comply mandatory provisions under Sections 42, 50 and 52A of NDPS Act, in the light of clear admission of prosecution witnesses in their cross-examination, and as such, in the light of Constitutional
Bench Judgment of the Apex Court in Karnail Singh Vs. State of Haryana, 2009, total non-compliance of Section 42 of NDPS Act, accused are entitled for acquittal. She would further submit that PWs 1 to 3 did not support the prosecution case and the testimonies of P.Ws.4 to 8 are inconsistent and contrary in many aspects and as such, their testimonies cannot be relied to believe the prosecution case as to seizure of ganja as alleged by the prosecution. She would further submit that the Investigating Officer failed to ascertain ownership of crime vehicles, failed to prove that they produced the seized contraband before the Drug Disposal Committee.
So, the learned Counsel for the A-1, A2 and A4 to A-8 by discussing the oral and documentary evidence relied upon by the prosecution, would finally submit the prosecution agency failed to prove its case beyond reasonable doubt for the charge leveled against A-1, A2 and A4 to A-8 and sought to acquit the accused A-1, A2 and A4 to A-8 by extending benefit of doubt.
9 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru
10. Sri N. Ramu, the learned Special Public Prosecutor would submit that the oral evidence of P.Ws.4 to 8, Exs.P-1 to P-9 and M.Os.1s to 8 clearly evident that on 14-3-2018, at about 04.30 p.m., at Devarapalli Village, P.W.8 seized 320 Kgs., of Ganja from the possession of the A-4 to A-8 and
Sunnayalatenkayala Jithendra (A-9), while they were carrying the same in the offending cars stated supra, apart from seizing cars, cell phones and cash, arrested them, recorded confessional statement and got sent them to remand. He would fairly submit that P.W.8 failed to follow mandatory provisions under Sections 42 and 52-A of NDPS Act, and as such, it is left to the discretion of the Court to believe the prosecution case as to arrest of accused 4 to 8 and Sunnayalatenkayala Jithendra (A-9) and seizure of contraband of Ganja weighing about 320 Kgs.
11. Out of 8 witnesses examined by the prosecution, PWs.1 to 3 turned hostile and did not support the prosecution case. P.Ws.1 to 3 also denied their Sec.161 (3) Cr.P.C., Statements allegedly given to the police vide
Exs.P-1 to P-3 respectively. So, P.Ws.1 to 3 completely un-favoured to the prosecution case. Thus, the prosecution mainly relied upon the evidence of
P.Ws.4 to 8 apart from Exs.P-4 to P-9 and M.Os.1 to 8 to prove the above charge against A-1, A2 and A4 to A-8.
12. As rightly contended by the learned Counsel for the accused, in the cases of in NDPS Act, 1985, there are certain operating presumptions under Section 35, presumption of culpable mental state of the accused and 54, presumption of possession, against the accused under the Act which 10 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru bestows burden of proof on the accused, after initial discharge of burden of proof by the Prosecution Agency, but indisputably, the said presumptions are rebuttable presumptions.
In Naresh kumar @ Nitu Vs. State of Himachal Pradesh in
Crl. Appeal No.1053/2016 dated 27.07.2017 stated supra, it was held that in the stringent nature of the provisions of the act, the revers burden of proof, the presumption of culpability under Section 35, and presumption against the accused under Section 54, any reliance upon Sec 114 of Evidence Act in the facts of the present case, can only be at the risk of fair trial to the accused and the said presumptions are rebuttal.
In Noor Aga vs. State of Punjab, in (2008) 16 SCC 417, it was held that at Para 58:- “58……An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is “beyond all reasonable doubt” but it is “preponderance of probability” on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of
Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the 11 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru element of possession will have to be proved beyond reasonable doubt.”
13. So, it is incumbent on the part of the prosecution to establish that the recovery of 320 Kgs., of Ganja from the possession of accused 4 to 8 on 14-3-2018, at about 04.30 p.m., at the scene of offence by producing cogent, reliable and trustworthy evidence apart from strictly following various provisions of NDPS Act.
14. Before adverting, appreciating, analyzing the evidence of prosecution witnesses, the brief evidence of P.Ws.4 to 8, who are material witnesses can be extracted infra:
PW.8 has deposed that on 14.03.2018, at about 05.00 am, he received a credible information that some persons transporting the ganja; then, he collected mediators viz., PW.4, Galinki Veera
Raghavulu-LW.7; then, he along with said mediators, S.I of police and staff went to the State Highway situated in the opposite to Devarapalli Police Station on Kovvur – Eluru Road, and checking the vehicle and at that time one Innova Car bearing number AP 29 W 9009 came there; they stopped the said vehicle and checked; they found one driver of the said Innova Car and another person sitting by the side of the driver; A4 was the driver of the said car. On interrogation of the said two persons by them, they informed that there was a ganja in the car and also informed that two other cars coming behind their vehicles. Meanwhile the said two vehicle i.e., TATA Indigo car bearing number AP 10 AD 1857 and Ford Figo car bearing number KA 03 AD 8238 also arrived; they stopped the said two cars also and found one person as a driver in TATA Indigo Car bearing number AP 10 AD 12 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru 1857 and A-2 and A-7 and another person in Ford Figo car bearing Number KA 03 AD 8238. He stated the person found in the TATA Indigo car was not there among the accused present in the court. On interrogation, they gave their identity and address particulars separately and informed that there was a ganja in the said two cars.
PW.8 also testified that then, he secured Deputy
Tahsildar, Devarapalli; he served 50 NDPS notices to the said six persons in the three vehicles; they drafted mediator report for securing the Deputy Tahsildar vide Ex.P4.
PW.8 also testified that on 14.03.2018 at about 07.00 am., after arrival of Deputy Tahsildar, they checked the three cars stated above in the presence of mediators and Tahsildar; they examined the each person individually and they confessed the they were bringing the Ganja from Tuni and police caught them; then, they found 30 packets of ganja in Innova car bearing No.
AP 24 W 9009, 100 packets in TATA Indigo car bearing number
AP 10 AD 1857 and 30 packets of ganja in Ford Figo car bearing number KA 03 AD 8238 (totaling 160 packets); they secured weighing machine person (PW.3) and got weighted the said packets and found 320 kgs of ganja in 160 packets; then, he drew 300 grams of ganja from each packet in the bottom, middle and top and total samples drawn 160 x 3 = 480 samples vide MO.1; he kept the said samples in the covers, affixed slips and obtained their signatures was the 480 packets of samples; he also seized
MO.2 cash Rs.1,100/- and (MOs 3 to 8) Six mobiles phones from the said persons, kept in the packets and affixed slips and obtained their signatures; then, he arrested the said six persons and seized the contraband of ganja, three vehicles stated above and MO.s 2 to 8 under the cover of mediator report vide Ex.P5; then, he brought the six persons to the police station along with property; then, he instructed PW.7 to register FIR on the strength 13 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru of Ex.P5 and accordingly, he registered the FIR; then, on the same day, he examined PWs 1 to 3, LW.4-K. Veerraju and recorded their statements.
PW.8 also testified that on 15.03.2018, he got remanded all the above six accused by due procedure; on 04.04.2018, he sent MO.1 samples to the Chemical examiner, Kakinada along with letter of advice through DSP and his successor obtained
Ex.P-9 chemical analysis report.
P.W.8 also testified that on 28.04.2018, at about 02.30 pm, he arrested A1 at the bus stop near ASRAM hospital, Eluru, on the confession of arrested accused and also recorded confession of A1 with regard to procuring ganja through the arrested accused vide Ex.P6; then, he brought A1 and sent to remand.
P.W.8 also testified that on 12.05.2018, at about 12.00 noon, he arrested A2 - K.Ramesh at Gopalapuram road in
Devarapalli and recorded his confession statement vide Ex.P7; then, he brought A2 to the police station and got remanded him.
On 29.09.2018, he examined LW.5-Smt. G. Sujatha and recorded her statement and said Sujatha was the owner of Innova Car.
Later his successor after verifying his investigation and receipt of chemical analysis report, filed charge sheet.
P.Ws.4 to 7 corroborated the evidence of PW.8.
15. Now it is to be seen, whether the prosecution proved seizure of contraband of ganja from the accused by following mandatory provisions under NDPS Act, 1985 and amended provisions.
16. As stated above, it is the contention of the learned Counsel
for the accused that P.W.8 failed to follow the mandatory provision under
Section 42 of NDPS Act.
14 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru
Section 42 of the NDPS Act relates to:
"42. Power of entry, search, seizure and arrest without warrant or authorization.-- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central
Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central
Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person 15 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub- section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate superior official."
On plain reading of Section 42 of the NDPS Act, it is applicable, when any officer specified under the said section had reason to believe either from his personal knowledge or information given by any person and taken down in writing that any such narcotic drug or psychotropic substance or controlled substance is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset enter into any such building or any conveyance or place.
Section 43 of the NDPS Act reads as follows:
"43. Power of seizure and arrest in public place. -- Any officer of any
of the departments mentioned in section 42 may,
(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled 16 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.
Explanation: For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public."
So, Section 42 includes a conveyance also and as per the explanation to Section 43, public place includes any public conveyance. As per the facts of the present case in hand, the contraband of 320 Kgs of ganja was found in the three vehicle state above, on the fateful date of incident, at the scene of offence while the above accused A-4 to A-8 were transporting the ganja in the said vehicles. It is not proved that the persons travelling in the vehicle are paid passengers or not and hence, it is to be inferred as a private vehicle. In fact, it is not at all case of the prosecution that the said vehicles are transport vehicles and admittedly the said vehicles are private vehicles.
In Abdul Rashid Ibrahim Mansuri v. State of Gujarat (2002) 2 SCC
513, a three-Judge bench of the Hon'ble Apex Court held that:
"Compliance of Section 42 of the NDPS Act, 1985 was mandatory and failure to take down the information in writing and forthwith sent a report to his immediate superior official would cause prejudice to the accused."
In Sajan Abraham v. State of Kerala (7) (2001) 6 SCC 692 = 2001(6)
ALT 15.1 (DN SC), a three-Judge bench of the Hon'ble Apex Court held that: "Section 42 was not mandatory and substantial compliance was sufficient."
The Constitutional Bench of the Hon'ble Apex Court in Karnail Singh v.
State of Haryana dated 29.07.2009 in Crl.A.No.36/2003,(2009)8 SCC 539 held that:
"Search and seizure are essential steps in the armory of an investigating officer in the investigation of a criminal case and a 17 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru balance must be struck between the need of the law and the enforcement of such law on one hand and the protection of citizens from oppression and injustice on the other. The provisions contained in
Chapter V are intended for providing certain checks on exercise of powers of the authority concerned as they are capable of being misused through arbitrary or indiscriminate exercise unless strict compliance is required. The statute mandates that the prosecution must prove compliance with the said provisions." and considering its judgments in Abdul Rashid Ibrahim Mansuri V.
State of Gujarat stated supra and Sajan Abraham v. State of Kerala (2001) 6 SCC 692 held that:
“35. In conclusion, what is to be noticed is that Abdul Rashid Ibrahim
Mansuri V. State of Gujarat [(2002) 2 SCC 513] case did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham v. State of Kerala [(2001) 6 SCC 692] case hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows :
(a) The officer on receiving the information (of the nature referred to in
Sub-section (1) of section (42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1).
(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.
(c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and 18 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.
(d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42 . To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001."
In Bahadur Singh v. State of Haryana (2010) 4 SCC 445,
the Apex Court held that:
"17. It cannot but be noticed that with the advancement of technology and the availability of high speed exchange of information, some of the provisions of the NDPS Act, including Section 42, have to be read in the changed context. Apart from the views expressed in Sajan
Abraham's case [(2001) 6 SCC 692] that the delay caused in complying with the provisions of Section 42 could result in the escape of the offender or even removal of the contraband, there would be substantial compliance, if the information received were subsequently 19 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru sent to the superior officer." "19. Apart from the decision in Sajan Abraham's case, the decision of the Constitution Bench in Karnail Singh's case [(2009) 8 SCC 539], has also made it clear that noncompliance with the provisions of Section 42 may not vitiate the trial if it did not cause any prejudice to the accused.
Furthermore, whether there is adequate compliance of Section 42 or not is a question of fact to be decided in each case."
In Darshan Singh v. State of Haryana, (2016) 14 SCC 358, wherein it was held that:
"The mandate contained in Section 42(1) of the NDPS Act, requiring the recording in writing, the details pertaining to the receipt of secret information, as also, the communication of the same to the superior officer are separate and distinct from the procedure stipulate under the provisions of Criminal Procedure Code. Section 42(1) of the
NDPS Act lays down that the empowered officer if he has a prior information given by any person, should necessarily taking down in writing and where he has reason to believe from his personal knowledge that offences under Chapter IV have been committed or that materials which may furnish evidence of function of such offences or consiled in any building etc., or he may carry out the arrest or such without warrant between sunrise and sunset and he may do so without recording his reasons of belief. The two separate procedures noticed above are exclusive to one another compliance with one, would not imply compliance with the other. In the circumstances contemplated under Section 42 of the NDPS Act, the mandate of the procedure contemplated under Section 42(1) and
Section 42(2) will have to be followed separately in the manner interpreted by the Supreme Court in Karnail Singh v. State of
Haryana [(2009) 8 SCC 539], and the same will not be assumed merely because the Station House Officer concerned, had registered a First Information Report, which was also dispatched to the
Superintendent of Police in compliance with the provisions of Criminal
Procedure Code. "Submission of the respondent-State state that the registration of FIR at the hands of SHO and its communication to 20 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru
Superintendent of Police, Panwar would constitute sufficient compliance with Section 42 of the NDPS Act is rejected. Section 42 of the NDPS Act was not complied with at all, in so far as the present controversy is concerned."
In Karnail Singh v. State of Haryana stated supra, the Constitutional Bench of the Apex Court also stated that:
"The compliance with the requirement of Section 42(1) and 42 (2) in regard to writing down the information received and sending a copy thereof to the superior officer should normally precede the entry, search and seizure by the officer, but in special circumstances involving emergent situations sending a copy thereof to the superior official may get postponed by a reasonable period that is after entry, search and seizure. The question was one of urgency and expediency. It also specified that while total non-compliance with requirements of Sub-Section (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42.
As stated above, the decision of apex Court in Karnail Singh v. State of Haryana [(2009) 8 SCC 539] as followed in State of
Rajasthan v. Jagraj Singh @ Hansa, (2016) 11 SCC 687is absolutely clear, total noncompliance of Section 42 is impermissible. The rigor of
Section 42 may get lessened in situations dealt with in the conclusion drawn by the apex court in Karnail Singh v. State of Haryana [(2009) 8
SCC 539], but in no case, total non-compliance of Section 42 can be accepted.
17. In the present case in hand, it is the testimony of P.W.8 that on 14-3-2018 at about 5.00 a.m., he received credible information about possession of ganja, he secured P.W.4 and one Galinki Veera Raghavulu 21 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru (L.W.7) and after securing mediators, they went to State Highway situated in the opposite to Devarapalli Police Station on Kovvur – Eluru Road, and checking the vehicles at that time and they stopped three cars i.e., Innova Car bearing No. AP 29 W 9009, TATA Indigo Car bearing No.AP 10 AD 1857 and
Ford Figo Car bearing No. KA 03 AD 8238 and found 320 Kgs., of Ganja in 160 packets in the said vehicles, and as such, arrested the above accused vide Ex.P-5 mediators report.
The entire testimony of PW.8 does not throw any light that he sent intimation to his superiors within 72 hours inrespect of arrest of the accused, seizure of contraband of ganja, conveyance and other material objects. Thus, it shows that the prosecution did not produce any proof to show that P.W.8 complied the provision of Section 42 of NDPS Act.
In the light of law laid down by the Apex Court in the above referred citations more particularly the Constitutional Bench Judgment of the Apex
Court in Karnail Singh Vs. State of Haryana, stated supra, total non- compliance with requirements of Sub-section 1 and 2 of Section 42 is impermissible. So, it can be held that P.W.8 failed to comply the requirements of Sub-sections 1 and 2 of Section 42 of NDPS Act, though, it is mandatory compliance in the light of law laid down by the Hon’ble Apex Court. So, it can be held that P.W.5 failed to inform his immediate superior within 72 hours in respect of arrest of the accused, seizure of contraband of ganja and other material objects from the accused, and as such, it can be held that there was a total non-compliance of requirements of Section 42 of NDPS Act, and 22 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru thereby, the contention of the learned Counsel for the accused that the prosecution case suffers with regard to non-compliance of Section 42 of
NDPS Act is liable to be accepted.
18. As stated above, by virtue of Section 57 of NDPS Act, whenever, any person makes any arrest or seizure under the said Act, he shall within 48 hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superiors, but the same is also not complied by P.W.8.
19. Section 52A as amended by Act 16 of 2014, which came into force with effect from 1-5-2014, deals with disposal of seized drugs and psychotropic substances. It reads:
“Section 52A : Disposal of seized narcotic drugs and psychotropic substances.
(1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may from time to time, determine after following the procedure hereinafter specified.
(2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in chargeof the nearest police station or to the officer empowered under section 53, the officer referred toin sub-section (1) shall prepare an inventory of such 23 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru narcotic drugs or psychotropic substancescontaining such details relating to their description, quality, quantity, mode of packing, marks, numbersor such other identifying particulars of the narcotic drugs or psychotropic substances or the packing inwhich they are packed, country of origin and other particulars as the officer referred to in sub-section(1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any
Magistrate for the purpose of-
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.
(3) When an application is made under sub-section (2), the
Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the
Magistrate, as primary evidence in respect of such offence.”
It is the evidence of P.Ws.4 to 8, after seizure of 320 Kgs., of ganja from the above accused on 14-3-2018, at about 4.30 p.m., vide Ex.P-5 at the scene of offence, P.W.8 collected M.O.1 – samples (100 grams from each packet) at the scene of offence. Thus, P.W.8 drew M.O.1 sample at the scene of offence though the Sub section ‘C’ of Section 52A mandates to draw the 24 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru samples in the presence of Magistrate and certifying the correctness of list of samples so drawn.
The Apex Court in Union of India Vs. Mohanlal and another 1 , as stated supra, clearly gave direction that, 20 (1). No sooner the seizure of any
Narcotic Drugs and Psychotropic and controlled Substances and
Conveyances is effected, the same shall be forwarded to the officer in-charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52A(ii) of the Act, which shall be allowed by the
Magistrate as soon as may be required under Sub- Section 3 of Section 52A,
as discussed by us in the body of this judgment under the heading ‘seizure and sampling’. The sampling shall be done under the supervision of the
magistrate as discussed in paras 13 and 14 of this order.
In recent citation in SIMARANJIT SING Vs STATE OF PUNJAB, 2023
Live Law (SC 570), by discussing the decision of the Apex court in Mohanlal case stated supra, held at para 9 that hence, the act of PW.7 of drawing samples from all the pockets at the time of seizure is not in conformity with the
Law laid down by this court in case of Mohanlal and this creates a serious doubt about the prosecution case that substance recovered was a contraband.
In very recent Judgment in Mohammed Kahalid and another Vs The
State of Telangana Crl.A.Nos 1610 of 2023, dated 01.03.2024, it was held by the apex court at Para 22 that “ Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer PW.5 for preparing an inventory and obtaining samples in presence of the Jurisdictional
Magistrate. In this view of the matter, the FSL report (Exhibit P11) is nothing
1 Crl. Appeal No.652 of 2012 dated 28-1-2016 (S.C.) 25 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru but a waste paper and cannot be read in evidence”.
Thus, it shows that P.W.8 failed to follow the mandatory requirements under
Section 52A(ii) of NDPS Act.
20. P.W.4 is the then V.R.O., of Devarapalli, who acted as a mediator for the seizure of contraband, conveyance and other material objects from the possession of the accused vide Ex.P-5; PW.4 deposed that he could not identify the accused; P.W.4 also admitted in his cross-examination that police did not issue any summons to him; P.W.4 also admitted that presently
M.O.1 packets were not sealed; Tahsildar signature and seals were not there on M.O.1 sample; weight was not mentioned in M.O.1 slips; signatures of the accused not obtained on the slips of M.Os.1 to 8; the description of the currency vide M.O.2 had not been mentioned in Ex.P-5.
21. P.W.5 is the then Deputy Tahsildar, Devarapalli, in whose presence the seizure of contraband, conveyance and other material objects from the possession of the accused vide Ex.P-5 were effected. P.W.5 deposed that he could not identify the said six persons individually. He admitted in his cross examination that they were not maintaining movement register in the office; police served the summons, but summons are not available with him. He denied the suggestion that the police neither seized the contraband and vehicles in his presence nor arrested any persons and he was speaking falsehood.
26 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru
22. P.W.6 is the then V.R.O., of Devarapalli, who acted as a mediator for the for arrest of A-1 and A-2 vide Exs.P-6 and P-7 respectively. PW.6 admitted in his cross-examination that police did not serve any summons to him; there was a separate VRO for Eluru; ASRAM Medical College and
Hospital was near to the said bus stop; police did not secure any independent mediators; the concluding timing was not mentioned in Ex.P-6 and P-7 and police did not secure any independent witness for the arrest of A-2.
23. P.W.7 is none other than the S.I. of Police, Devarapalli Police
Station and he registered the F.I.R., on the strength of Ex.P-5 and he supported the evidence of P.W.8 with regard to arrest of the accused, recovery of 320 Kgs., of ganja from the said crime vehicles vide Ex.P-5 and also other material objects. He further deposed that he could not identify the driver and another person sitting in the Innova Car due to long gap; they stopped two cars and found two persons in each car, but he could not individually identify the said four persons, but they were there among the six accused persons standing in the Court. P.W.7 admitted in his cross examination that he gave evidence by seeing C.D. File; Column NO.3 in
Ex.P-8 was not filled, except timings; Column No.14 in Ex.P-8 was also not filled. Thus, it shows P.W.7 gave entire evidence on seeing the mediators report though he was not suppose to see mediators report and give evidence
in the Court. So, the contention of the defence that the evidences of P.Ws 4
to 7 are not credible and cannot be relied upon cannot be ruled out.
27 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru
24. P.W.8 also deposed in the similar lines by stating that six persons among the seven persons present in the Court Hall, but he could not identify the six accused individually. Thus, it shows, P.Ws.4 to 8 failed to identify the accused properly in the Court. P.W.8 also admitted that he verified the C.D.
while giving evidence. P.W.8 being Investigating Officer can verify the C.D., for recollection of the facts, but he was not suppose to see the C.D., for all the facts and read out the contents of the C.D.
25. As stated above, P.W.8 being the Investigating Officer did not follow the Sections 42, 52A and 57 of NDPS Act, which are mandatory provisions for the reasons best known to him.
26. It appears, P.W.8 also did not ascertain the particulars of the conveyance seized vide Ex.P-5. P.W.8 stated in the cross examination that he drew samples before the Magistrate and also not produced the contraband and vehicles before the Magistrate; he had not obtained inventory certificate from the Magistrate. When P.W.8 did not follow the mandatory provisions under NDPS Act, much weight cannot be given to his evidence.
27. So, on perusal of the evidence of P.W.8, the consciousness of the Court is shocking as to how he carried the investigation in a grave offence of NDPS Act.
28. Section 26 of the Indian Evidence Act, 1872 (for brevity, ‘the
Evidence Act’), provides that no confession made by any person whilst he is in the custody of a police officer shall be proved against such person, unless it is made in the immediate presence of a Magistrate. Section 27, thereafter, is in 28 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru the nature of an exception to Section 26 of the Evidence Act. It states that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
Therefore, it is essential under Section 27 of the Evidence Act that the person concerned must be ‘accused of an offence’ and being in the ‘custody of a police officer’, he or she must give information leading to the discovery of a fact and so much of that information, whether it amounts to a confession or not, that relates distinctly to the fact discovered, may be proved against him.
In effect, both aspects, viz, being in ‘the custody of a police officer’ and being ‘accused of an offence’, are indispensable pre-requisites to render a confession made to the police admissible to a limited extent, by bringing into play the exception postulated under Section 27 of the Evidence Act.
29. So, it is well settled law that confession made by accused 4 to 8
before PW.8 while in the custody of the police either to the police or to the
third party is irrelevant, inadmissible and hit by Section 25 and 26 of Evidence
Act. A1 and A2 were not arrested at spot and no recovery of contraband ganja from them. Absolutely, there is no evidence against A1 and A2 about their involvement in the crime, except the alleged confession of accused, which is not admissible one. It seems, the entire case of prosecution against
A1 and A2 is only based on the interrogation notes of the accused, which cannot be considered.
29 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru
30. On careful examination of evidence of PWs 4 to 8, their evidence is also not credible, reliable and trustworthy to believe the prosecution case and as such, it is not safe to rely upon their evidence.
In the instant case, PW.8 failed to follow mandatory requirements under 42 and 52 A(ii) of NDPS Act and also guidelines of the Apex court in
Mohanlal case, which are fatal to the prosecution case and accused are entitled for acquittal.
31. So, in the light of the above discussion, it can be held that the prosecution failed to prove its case beyond reasonable doubt against Accused 1, 2, 4 and 8 for the charge under Section 8 (c) r/w. 20 (b) (ii) (C) of Narcotic
Drugs and Psychotropic Substances Act, 1985 and as such Accused 1, 2 and 4 to 8 can be acquitted by extending benefit of doubt.
32. In the result, the Accused 1, 2 and 4 to 8 are found not guilty of the charge under Section 8 (c) r/w. 20 (b) (ii) (C) of Narcotic Drugs and
Psychotropic Substances Act, 1985, and Accused 1, 2 and 4 to 8 are acquitted under Section 235 (1) Cr.P.C., for the charge under Section 8 (c) r/w. 20 (b) (ii) (C) of Narcotic Drugs and Psychotropic Substances Act, 1985.
The bail bonds of the Accused 1, 2 and 4 to 8 shall be in force for six months as per Sec.437-A of Cr.PC. The case against A-3 and A-9 was already abated as they died.
The unmarked vehicle i.e., Indigo LS Car bearing No.AP 10 AD 1857, and Ford Car bearing No. KA 03 AD 8238, which are in the safe custody of police are ordered to be returned to the registered owners of their respective 30 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru vehicles as per Ex.P-5, on proper identification and acknowledgement and subject to result of the appeal, if they approach after expiry of appeal time, and if they do not come forward to receive the vehicles, after expiry of appeal time, the vehicles are ordered to be produced before Drug Disposal
Committee for confiscation to the State. The unmarked Innova Car bearing
No. AP 24 W 9009 has been given to A8 for interim custody and he shall keep the vehicle intact till expiry of appeal time and thereafter, the interim orders would become absolute. The Station House Officer, Devarapalli P.S., is also directed to credit M.O.2 cash of Rs.1,100/- (Rupees one thousand and one hundred only) and M.Os.3 to 8 cell phones to the state, after expiry of appeal time and produce the proof before this court, since none claiming the said property. The SHO is also hereby directed to produce the seized contraband of ganja and MO.1 samples before the Drug Disposal committee forthwith for destruction and produce the proof.
Typed to my dictation by the Typist directly on computer device, corrected and pronounced by me in open Court, on this the 23 rd day of April, 2024.
Sd/- G. Rama Gopal
I ADDL. SESSIONS JUDGE,
ELURU.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Prosecution : For Defence :
P.W.1 Pallapu Srinu. -None - P.W.2 Shaik Ansary. P.W.3K.Ramana Reddy. P.W.4K.Venugopala Rao. P.W.5S.Pothuraju. P.W.6 P.Pandu Babu.
31 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru
P.W.7 P.Vasu. P.W.8 C.Sarath Raj Kumar.
DOCUMENTS MARKED
For prosecution :
Ex.P-1 -- Sec.161 (3) Cr.P.C., Statement of P.W.1. Ex.P-2 -- Sec.161 (3) Cr.P.C., Statement of P.W.2. Ex.P-3 -- Sec.161 (3) Cr.P.C., Statement of P.W.3. Ex.P-4 -- Mediators report dated 14-3-2018 at 5.00 a.m. for securing Deputy Tahsildar. Ex.P-5 -- Mediators report dated 14-3-2018 at 7.00 a.m. (excluding confession). Ex.P-6 -- Mediators report dated 28-4-2018 in respect of arrest of A-1 (totally excluding confession). Ex.P-7 -- Mediators report dated 12-5-2018 at 10.00 a.m., in respect of arrest of A-2 (totally excluding confession).
Ex.P-8 -- Original FIR in Cr.No.70/2018 of Devarapalli P.S.
Ex.P-9 -- Chemical Analysis Report.
For Defence: - Nil -
MATERIAL OBJECTS MARKED
M.O.1 : Samples of ganja packets (480)
M.O.2 : Cash of Rs.1,100/-.
M.O.3 : Samsung White Colour Cell Phone.
M.O.4 : Samsung phone.
M.O.5 : Samsung Cell Phone.
M.O.6 : Nokia Cell Phone.
M.O.7 : Oppo Company Cell Phone.
M.O.8 : Samsung Cell phone.
Sd/- G. Rama Gopal
I ADDL. SESSIONS JUDGE,
ELURU.
Copies to:
1. The Registrar (Judl.), High Court of Andhra Pradesh, Nelapadu (through C.D.)
2. The Principal District & Sessions Judge, W.G., Eluru.
3. The Collector, W.G., Eluru.
4. The Superintendent of Police, W.G., Eluru.
5. The Director of Prosecutions, Govt. of A.P., Hyderabad.
32 NDPS SC.5 OF 2020 I ADDL. DIST. AND SESSIONS COURT, D.D. 23-4-2024 West Godavari Dist., Eluru