1
IN THE COURT OF THE SPECIAL SESSIONS JUDGE FOR TRIAL OF
THE CASES UNDER THE NARCOTIC DRUGS AND PSYCHOTROPIC
SUBSTANCES ACT, 1985 (cumI ADDITIONAL SESSIONS JUDGE): EAST GODAVARI DISTRICT: RAJAMAHENDRAVARAM
Present: Smt. M.Babitha,
Principal District and Sessions Judge, Rajamahendravaram
(FAC) I Additional Sessions Judge Friday, the 29th day of January, 2021
NDPS SC No. 02 of 2019
Name of the Accused and 1. Bharath Sesharao Ambedkar, son of particulars Sesharao, aged 37 years, C/o.Teli, R/o.Pathur Village, Pathur Thaluka, Jalna District, Maharastra State (Accued No.1)
2. Papa Sankar Rathod, S/o.Sankhar, aged 38 years, C/Banjaea, R/o.Lane No.3, Jogeswara Wadi Jamkhed Post, Ambed Talluka, Jalna District, Maharashtra State (Accused No.2) The case against the Accused No.2 is split up and renumbered as NDPS SC No.72/2019
Name of the complainant State represented by the Prohibition and Excise Inspector, Chintoor Prohibition and Excise Station
ChargesUnder Section 8(c) r/w. 20(b)(ii)(C) of the NDPS Act
Plea of the Accused: Not guilty
Finding of the Judge: Not guilty
Sentence or Order: The accused No.1 is found not guilty for charge punishable under Sec.8(c) r/w 20(b)(ii) (C) of the Narcotic Drugs and Psychotropic
Substances Act, 1985, and he is acquited of the same under Sec.235(1) Cr.P.C. The property order with regard the MOs.1 to 16 shall be passed at the time of disposal of case against the absconding accused i.e., accused
No.2 in NDPS SC No.72/2019. The accused 2
No.1 shall be released forthwith, if he is not required in any case.
The prosecution is conducted by the Special Public Prosecutor,
East Godavari District, Rajamahendravaram.
Accused No.1 is defended by Sri J.V.V.Ramana, (LegalAid)
Advocate, Rajamahendravaram.
The case is connected with Cr.No.109/2018 of Prohibition & Excise
Station, Chintoor Police Station.
This case is coming on 11.01.2021 for final hearing before me and having stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
This is a case registered under Sec.18(c) r/w 20(b)(ii)(c) of of the
Narcotic Drugs and Psychotropic Substances Act, 1985, in Crime
NO.109/2018 of Prohibition & Excise Station, Chintoor.
2.The case of prosecution in brief is that, Accused No.1 is a resident of Pathur village, Pathur Taluka, Jaina District of Maharastra State and
Accused No.2 is the resident of Jageswarwadi village, Jamkhed post,
Ambed Talluka, Jaina District, Maharashtra State and both are friends and belongs to the same District. On 24.07.2018 at about 03.00 PM, the Prohibition & Excise Inspector along with his staff left the station for conducting general or regular route watch for Prohibition and Excise and
NDPS offences. They proceeded in their Government Duty vehicle i.e.,
Jeep bearing No.APO5W6983 and reached the Ramalayam in
Godlagudem Village of Chintoor Mandal at 04.30 P.M., conducted 3 vehicular check for Prohibition and Excise and NDPS offences. At 04.45
P.M, PW2Prohibition and Excise Inspector, Chintoor and LW5
M.Rajendrakumar and their team noticed a OSRTC bus bearing
No.OD10A1585 coming from Mothugudem side. On suspicion, PW2 and
LW5 stopped the bus with the help of other team members informed the driver (LW3 who is one of the mediators) and conductor of the bus that vehicle has to be examined for Prohibition & Excise and NDPS offences.
Then PW2 and LW5 along with team members, got into the bus and examined the bus in which PW2 has identified 3 travel bags below the seat which is located back side of the driver seat, one bag is in red color and bigger in size and remaining two bags are black in color and smaller in size while compare with the first bag. The conductor was enquired for the particulars of the owners of that bags and he disclosed the ownership particulars of the bags and revealed that those bags belong to two passengers who sat right side of the last seat. Then, those passengers were identified with the help of the conductor and they were enquired about those bags. The first passenger who sat beside the window of right side last seat replied that the red color bag belongs to him and second passenger who sat beside the first passenger replied that remaining two bags in black color were belongs to him. Further, Both of them confessed that those bags contains dry Ganja. Then PW2 asked the conductor and two drivers of the bus to act as mediators for examining the bags for which they agreed. As per the instructions of PW2, the first person i.e.,
Accused No.1 got open his bag in the presence of the mediators. This bag 4 having red color and it contains 8 brown colour bundles and then the top of covers of the cach bundle got open by Accused No.1 and found that each bundle having dry Ganja with leafy substances with stacks flowering tops and seeds possessing a characteristic odour of Ganja.
Further he noticed that each packet was covered with brown cover and the said Ganja is wrapped up and was packed in the shape of square. All the packets were weighed with spring balance available with the raid team kit and weighed 14.4 Kgs of Dry Ganja in (8) bundles (4) bundles having 8 Kgs of Ganja each 2 kgs and 3 bundles having 5.4 kgs of Dry
Ganja each 1.8 Kgs and one (1) bundle having 1 Kg Dry Ganja. Further he got open the side zip of the bag with the 1st person (accused No.1) in the presence of mediators, PW2 and L.W5 and found Lava keypad black color mobile phone and two hundred rupee notes and Bus ticket issued from OSRTC for Amount 151/Rs bearing No.0002102 from
Chintrakonda to Bhadrachalam. After interrogation, Accused No.1 confessed his name as Bharath Sesharao Ambedkar S/o. Sesharao, aged 37, C/o.Teli, resident of Pathur village, Pathur Talluka Jalna District of
Maharastra State. Futher, accused No.1 confessed that all the items found in the bag i.e., 14.4 Kgs of dry Ganja in (8) bundles, Lava keypad black color mobile phone and two hundred rupee notes, Bus ticket issued from OSRTC for a sum of Rs.151/Rs bearing No.00021021 from
Chintrakonda to Bhadrachalam are belongs to him and he purchased
Ganja from unknown person for an amount of Rs.1,000/ per KG at
Chitrakonada village and same is transporting in this bus for selling at 5 higher price at his native village and that he purchased ticket from
Chintrakonada to Bhadrachalam and same is kept in the bag. Similarly
Accused No.2 was identified his two (2) bags and then PW2 instructed the A2 to get open the first bag in the presence of mediators and raid party. Then 1st bag was got open by Accused No.2 in the presence of mediators and raid party and found that the said bag is in black color containing one(1) brown colour bundle. Then the top of covers of the bundle got open by Accused No.2 and found dry Ganja with leafy substances with stacks, flowering tops and seeds possessing a characteristic odor of Ganja, init. Further it was noticed that packet/s was covered with brown cover and the said Ganja is wrapped up and was packed in the shape of square. The bundle was weighed with spring balance available with the raid team kit and it weighed 04.8 Kgs of dry
Ganja and then the 2nd bag was got opened by Accused No.2 in the presence of mediators and raid party and found that bag is in black color containing one (1) brown color bundle, then the top of covers of the bundle got open by Accused No.2 and found that bundle having dry
Ganja with leafy substances with stacks, flowering tops and seeds possessing a characteristic odour of Ganja. Further it was noticed that packet was covered with brown cover and the said Ganja is wrapped up and was packed in the shape of square. The bundle was weighed with spring balance available with raid team and it weighed at 4.8 Kgs of dry
Ganja, in toto 9.6 kgs of Ganja in two bundles kept in these two bags and further get open the side zips of the bags with the Accuseed No.2 in the 6 presence of mediators, PW2, LW5 and found that Chilli B50 keypad
Mobile and Rs.150/(100 & 50) and Aadhar Card No.804421548777,
State Bank ATM with No.5103720175430938, Bus ticket issued from
OSRTC for a sum of Rs.517/bearing No.00021020 from Chintrakonda to
Bhadrachalam in 2nd bag side zip. After interrogation, Accused No.2 confessed that his name is Papa har Rathod S/o Sankhar Age.38 Years,
C/o. Banjara R/o.Lane No3, Jowar Wadi Jamkhed Post, Ambed
TallukaJalna District, Maharastra ate State He further stated that all the items found in two bags Le 96 kgs of Ganja in two bundles and Chilli
B50 keypad Mobile and 150 Rs(100+50)cash and Aadhar Card no 804421548777, State Bank ATM with no 5103720175436938 Bus ticket issued from OSRTS for a sum of Rs.151/ bearing NO.00021020 from
Chintrakonda to Bhadrachalam are belongs to him. He finally confessed that he purchased Ganja Rs.1000/ per KG from unknown person at
Chitrakonada village and same is transporting in this bus for selling at a high price at his native village.
3.Then PW2 enquired about the details of Bus driver and conductors for which they stated that this bus belongs to Jyepoor depot, Korapoot district of Odessa State and they also worked in this Bus depot. Further they stated that these two accused were purchased tickets from
Chintrakonda to Bhadrachalam, then PW2 verified the tickets found in these two bags with reference to the ticketmachine available in conductor of the bus and found tallied. Then PW2 informed Accused
Nos.1 and 2 that possession and transportation, selling of Ganja is an 7 offence under Section 8(c) r/w Sec.20(b)(II)(C) of N.D.P.S.Act, 1985 and arrested the Accused Nos.1 and 2 and seized the total contraband found in the 3 bags i.e., 14.4 kgs of Dry Ganja in (8) bundles, Lava keypad black color mobile phone and 2 hundred rupees notes nus ticket issued from OSRTS for an amount of Rs.151/Rs bearing No.00021021 from
Chintrakonda to Bhadrachaleram and 9.6 kgs of Ganja in two bundles and Chilli B50 keypad Mobile and Rs.150/Rs(100+50) cash and Aadhar
CardNo.804421548777,StateBankATMbearing
No.5103720175436938, Bus ticket issued from OSRTC for an amount of
Rs.151/ bearing No.00021020 from Chintrakonda to Bhadrachalam.
4. The mediators drafted a report for the detection of the offence, arrest of Accused Nos.1 and 2, confession made by Accused Nos.1 and 2 and seizure of the total contraband in 3 bags i.e., 14.4 kgs of Dry Ganja in (8) bundles, Lava keypad black color mobile phone and two hundred rupee notes, Bus ticket issued from OSRTC for an amount Rs.151/ bearing No.00021021 from Chitrakonda to 9.6 kgs of ganja in two bundles and Chilli B50 keypad Mobile and 150Rs(100soh and Aadhar
Cardno804421548777,StateBankATMbearing
No.5103720175436938 Bus ticket issued for an amount of Rs.151/ bearing No.00021020 from Chintrakonda to Badrachalam, affixed the identity slips on the contraband after got the signature of Accused and witnesses, PW2 and LW5. The drafting of mediators report was completed by 06.30 PM on 24.07.2018 in the presence of Accused No.1,
Accused No.2, LW2, LW3 and LW5 and others. Thereafter, PW2 8 registered the mediators report as a case in Crime No.109/2018 under
Section 8(C) r/w Sec.20(b)(ii)(C) of N.D.P.S.Act, 1985 of Chintoor
Prohibition and Excise Station. Accused Nos.1 and 2 were produced
before the Judicial Magistrate of First Class, Rampachodavaram for
remand and accordingly they were sent to judicial custody
5. Further PW2 detected the case without any prior information while conducting general route watch and did not have any prior information regarding NDPS offences, as such, he did not have any scope to inform the information to the immediate superior officers and to obtain authorization from superior officers before proceeding to trace the offence and that mobile network is also not available in that area. Hence PW2 has not informed the information to his superior officers. Hence Section 41 of NDPS Act is not attracted in this case. On 24.07.2018, PW2 made a full report of all the particulars of arrest and seizure of contraband in this case and submitted the same on the same date i.e., on 24.07.2018 to his immediate superior officer as per the section 57 of NDPS Act, 1985. The Prohibition and Excise Superintendent, Rajamahendravaram has received the same on 25.07.2018, thereupon, PW2 filed a memo
before the Judicial Magistrate of First Class at Rampachodavaram for
conducting Inventory of Ganja and drawl of Ganja samples on 23.08.2018 the J.F.C. Magistrate, Rampachodavaram conducted inventory and samples were drawn in the presence of J.F.C. Magistrate,
Rampachodavaram. On 23.08.2018, the samples which were drawn in the presence the J.F.C. Magistrate, Rampachodavaram were sent for 9
Chemical Analysis by PW2 and the Chemical Analysis report vide
C.E.No.1398/2018 dated 28.08.2018 was received on 28.08.2018 in which the Chemical Examiner certified that the samples are 'Ganja' and this is a Narcotic Substance falling under the definition of NDPS Act, 1985. On 11.09.2018 PW2 has produced the Ganja property before the
Drug Disposal Committee after drawn samples and obtained inventory certificate from the J.F.C. Magistrate, Rampachodavaram in Crime
No.109/2018 of Prohibition & Excise Stastion, Chintoor. After completion of the investigation, charge sheet was filed against the
Accused Nos.1 and 2 for possession, transporting and selling of Ganja of 24 Kgs. Hence the charge.
6.This Court, on perusal of charge sheet and material available on record, take the cognizance of the case under Sec.8(c) r/w 20(b)(ii)(B) of
NDPS Act, 1985, against the Accused Nos.1 and 2.
7.On appearance of Accused Nos.1 and 2 copies of case documents are furnished to them as contemplated under Sec.207 Cr.P.C.
8.Thereafter, as the Accused No.2 failed to appear before the Court,
NBW was issued against him on 04.07.2019 and also issued notices to the sureties of the Accused No.2 and as the case against the Accused
Nos.1 and 2 is pending since long time, the case against Accused No.2 was split up and numbered as NDPS SC No.72/2019 on 12.12.2019, and in the present case the proceedings against the Accused No.1 is proceeded with. (Throughout trial of the case, the accused No.1 is in 10
Central Prison, Rajamahendravaram)
9.After hearing both sides, this Court framed charge against the
Accused No.1 under Sec.228(1)(b) Cr.P.C for the offence punishable under Sec.8(c) r/w 20(b)(ii)(B) of NDPS Act, 1985, and the same is explained to him through translator, for which he pleaded not guilty and claimed to be tried.
10.During the course of trial, the prosecution examined Pws.1 and 2 and got marked Exs.P1 to P11 and Mos.1 to 16.
11.After closure of prosecution evidence, the Accused No.1 was examined under Sec.313 Cr.P.C. for the incriminating material against him in the prosecution witnesses, for which he denied to be false and reported no defence evidence.
12.Heard both sides physically. Perused the material on record.
13.Now for deciding the charge framed against the Accused No.1, the points that arise for consideration are: (1) Whether the prosecution proved that on 24.07.2018 at about 04.30 PM at Ramalayam in Godlagudem Village of Chintoor
Mandal, the Accused No.1 was found in possession and transportation of 24 Kgs of Ganja without any permit or licence, in contravention of the provisions of the NDPS Act, 1985.
(2) Whether the prosecution has proved that the investigating officer complied the mandatory provisions in detecting the Ganja and investigation of the case?
(3) Whether the prosecution has proved the charge framed against the accused No.1 beyound reasonable doubt?
POINTS 1 to 3:
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14.The learned Special Public Prosecutor argued that PW1 is the
Conductor and PW2 is the Prohibition and Excise Inspector who is the
Investigating Officer as well as the person who conducted raid and the prosecution has proved the guilt of the accused beyound reasonable doubt, hence prays to convict the Accused No.1.
15.On the other hand, the learned defence counsel argued that in the
First Information Report as well as the Occurrence report there is no mention of the Bus number and it was also mentioned that the bus was coming in opposite direction and that there is no document to show that the samples were collected and there are no signatures that Mos.1 to 16 were seized from the possession of Accused. There is only one photo of the scene of offence i.e., Ex.P4 in which the Bus number is not visible.
PW1 Conductor was also not present and further there is no notice issued to the accused as per Sec.50 of NDPS Act and even it was not explained to the accsued about the incriminating circumstances and the inventory and picking of the samples under Sec.52(A)(2) of the NDPS Act was not done immediately and the inventory has to be carried out within 30 days of the registration of the First Information Report and the letter of A.S.P Excise to Chemical Examiner under Ex.P9 not endorsed the signature in Ex.P8 letter of advice and there was a correction in Ex.P8 with regard to the date and the Accused No.1 was falsely implicated in this case and he is no way concerned with the offence. Hence prays to acquit the accused No.1.
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16.Now it is necessary to peruse the evidence of PWs.1 and 2. PW1 who is the Conductor of the Bus deposed that LW2Ranjan Kumar Bhol and LW3B.Siba Gowda are the drivers in Odissa State RTC. On 24.07.2018 he being a conductor and LW2 and LW3 being drivers of the
Bus from Jaipur to Bhadrachalam bearing Regd.No.OD10A1585 and when their bus reached Ramalayam temple at Vodlagudem Excise,
Chinturu Police stopped their bus and checked the luggage of the passengers. The luggage of Bharat Sesharao Ambedkar and Rathod were also checked and they are found in possession of three luggage bags. He identified Accused No.1 and further he deposed that when PW2 checked the luggage bags, found brown colour packets therein contains Ganja.
The Excise Inspector checked the three bags and got weighed the bundles and the bag of Accused No.1 contains 14.4 Kgs Ganja and the bag of Accused No.2 contains 9.6 Kgs of Ganja, then the Excise Inspector lifted two samples of 100 grams each from the bag of Accused Nos.1 and 2 and placed them in news paper cover. Mos.1 to 8 are the Ganja packets in the bag of Accused No.1, Mos.9 and 10 are Ganja packets in the bag of Accused No.2. Mos.11 and 12 are the sample packets. On personal search of Accused No.1, Excise Inspector seized one mobile phone Rs.200/ cash. MO.13 is the Lava keypad mobile and MO.14 is cash of Rs.200/. On personal search of Accused No.2, Excise Inspector seized one mobile phone, cash of Rs.150/, Aadhar card, State Bank of
India ATM Card. MO.15 is Chilli Mobile phone. MO.16 is cash of
Rs.150/. Ex.P1 is the Aadhar card of Accused No.2. Ex.P2 is the State 13
Bank of India ATM Card. The Excise Police personnel drafted mediators report Ex.P3 which contains his signature. The Excise Inspector arrested the accused persons and seized the contraband and the photos under
Ex.P4 were taken at the time of seizure of contraband.
17.PW2Prohibition and Excise Inspector of Chintoor deposed that on 24.07.2018 at about 03.00 PM he along with LW5Head Constable by name M.Rajendrakumar proceeded to Godlagudem village for route watching and when they reached Ramalayam, one RTC Bus bearing
Regd.No.OD10A1585 coming from Mothugudem, then he started checking luggage of passengers and found one red colour and two black colour bags behind the driver seat, when he asked the conductor/PW1 about the said three bags, he informed that the said bags belong to two persons by showing them who are sitting on the last seat of the Bus. The said two persons revealed their names as Bharat Sesharao Ambedkar and Papa Sankar Rathod. On enquiry they revealed that the bags belongs to them and that the bags contain Ganja. Then he requested the two drivers and PW1 and others to act as mediators and in the presnce of said mediators, he checked the bags of Accused Nos.1 and 2. When he checked the red bag belongs to Accused No.1 and found 8 bundles and then he checked the remaining bags of Accused No.2 and thereby found one bundle in each bags and then got weighed the same. Accused No.1's bag contains 14 Kgs of Ganja and Accused No.2 bags contain 9.6 Kgs of
Ganja. Then he also checked the zip packet of bag of Accused No.1 and 14 found MO.13 Lave Mobile and MO14 cash of Rs.200/. Then he also checked the zip packet of bag of Accused No.2 and found MO15 Mobile phone, MO16 cash of Rs.150/, Ex.P1 Aadharcard and Ex.P2 State
Bank of India ATM Card and, seized the same. He drafted Ex.P3 mediators report and thereafter he arrested Accused Nos.1 and 2 and seized the contraband and brought them to Excise Police Station and registered a case in Crime No.109/2018 under Sec.8(c) r/w 20(b)(ii)(C) of
NDPS Act and issued Ex.P5/FIR and on the same day he submitted an application before the J.F.C. Magistrate, Rampachodavaram for taking inventary and lifting of samples and two (2) samples were lifted. Ex.P6 is the application under Sec.52(A)(2) of NDPS Act along with AnnexureI.
At the time of inventory Ex.P7 photographs (2) were taken. On the same date, he forwarded the samples to Chemical Examiner through Assistant
Prohibition & Excise Superintendent, Rajamahendravaram under cover of Ex.P8 letter of advice. Ex.P9 is the letter from Assistant Prohibition
Excise Superintendent to Chemical Examiner. He sent Ex.P10 letter to the Chairman Deputy Commissioner, Prohibition and Excise (Drug
Disposal Committee). Ex.P11 is the Chemical Excaminer Report indicating the samples are Ganja. After completion of investigation, he filed charge sheet.
18.Now it is necessary to look into whether the mandatory provisions are complied by the Excise Officials or not while conducting seizure and apprehension of the accused. Firstly it has to be looked into the Sec.42 15 of the NDPS Act, 1985 which reads as follows; “42. Power of entry, search, seizure and arrest without warrant or authorisation :_ (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of cen tral excise, narcotics, customs, revenue intelligence or any other department of the Central Government including paramilitary 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 depart ment of a State Government as is empowered in this behalf of general or special order of the State Government, if he has rea son to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drugs, 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 illegal 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 sunrises 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 articles and any animal or conveyance which he has reason to believe to be liable to confis cation 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 per son whom he has reason to believe to have committed any of fence punishable under this Act : [Provided that in respect of holder of a license for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under 16 this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of subinspector:
Provided further that] if such officer has reason to believe that a search warrant or authorization cannot be obtained without af fording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such build ing, 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 subsection (1) or records grounds for his belief under the pro viso thereto, he shall within seventytwo hours send a copy thereof to his immediate official superior”
19.So, on perusal of Sec.42 of the Act goes to reveal that, if the empowering officer has information out of his personal knowledge or from the information taken down inwriting about the storage of any ganja or transportation of the same in any enclosed place, house or con veyance as the case may be. He may enter into such place and seize the same between the sunrise and sunset. Further Sec.42(2) of the act con templates sending of a report within 72 hours after seizure to the supe rior authorities.
20.So, on perusal of evidence of PW2 on 24.07.2018 at about 03.00 PM, himself and LW5 Head Constable proceeeded to Godlagudem village for route watching and when they reached Ramalayam, at that time one RTC Bus bearing Regd.No.OD10A1585 coming from Mothugu dem and then they have checked the said bus. So, PW2 has no prior in formation about the transportation of Ganja in the said bus or any com plaint made in this regard in writing. So, as a routine check while they were checking, he came to know about the possession of the contraband 17 in the bus, though pw2 contended there is no telephone signal at that area he could not contact his Superior Officer in order to obtain permis sion, he ought to have made some efforts in this regard. As such, he failed to comply section 42 that is to obtain permission from his superior officer.
21. The NDPS Act was enacted to consolidate and amend the law re lating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic sub stance. Apex Court had occasion to consider the provisions of NDPS Act in large number of cases. Apex Court has noted that the object of NDPS
Act is to make stringent provisions for control and regulation of opera tions relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the content have to be observed strictly. Therefore these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Section 42(1). To that extent they are mandatory. Consequently the failure to comply with these requirements thus affects the prosecution case and therefore vitiates the trial, as was by the Hon'ble Apex Court in State Of
Punjab vs Balbir Singh, 1994 (3)SCC 299.
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22.The nonrecording of information has in fact deprived the accused as well as the Court of the material to ascertain what was the precise information which PW 2 got before proceeding to stop the vehicle.
It further held that value of such an information, which was at the earliest in point of time, for ascertaining the extent of the involvement of the accused in the offence, was of a high degree; as held in Karnail
Singh Vs. State of Haryana reported in 2009 (3) SCC (CRL) 887.
23.Further the provision of Sec.42 are intended to provide protection as well as lay down a procedure which is mandatory and which should be followed positively by the Investigating Officer, he is obliged to furnish the information to his superior officer forthwith that obviously means without any delay but there could be cases where the
Investigating Officer cannot follow Sec.42 of the Act for which special reasons to be explained in writing as to why he is not able to reduce the information in writing and send the said information as early as possible but should be later and preferably prior to recovery. Compliance of provisions of Sec.42 is mandatory and there cannot be escape from its strict compliance.
24.Now it is necessary to peruse the Sec.50 of the Act, which read as follows:
“Conditions under which search of persons shall be conducted:
When any officer duly authorized under section 42 is about to search any person under the provisions of section 41, section 19 42 or section 43, he shall, if such person as requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the
Magistrate referred to in subsection (1).
The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
No female shall be searched by anyone excepting a female.
When an officer duly authorized under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or
Magistrate, proceed to search the person as provided under
section 100 of the Code of Criminal Procedure, 1973.
After a search is conducted under subsection (5), the officer shall record the reasons for such belief which necessitated such search and within seventy two hours send a copy thereof to his immediate official superior.
25.As per Sec.50 of NDPS Act, search has to be carried out in the presence of Gazetted Officer of any Department or in the presence of nearest Magistrate but there is no possibility of obtaining the presence of nearest Gazetted Officer or Magistrate, then the search can be conducted as provided under Sec.100 Cr.P.C. Here there is no possibility of secur ing the Gazetted Officer as there is no prior information about the illegal transportation of contraband, as such, the presence of Gazetted Officer is not secured and it is not fatal to the case of prosecution.
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26.Further it is relied that there was a case whether investigating agency found the contraband in zip bag of the accused, the trial court recorded conviction against the accused and when the matter went in ap peal before the Hon’ble High Court of A.P, which referred various deci sions and held that Sec.50 of the NDPS Act would come into play only in the case of a search of a person as distinguished from search of any place etc. In arriving at such a conclusion relied on a decision of the
Hon’ble Supreme Court in Kaleme Thumba Vs. State of Maharashtra and
further the Constitution Bench decision of the Hon’ble Supreme Court in
State of Punjab Vs. Baladev Singh reported in (1999) 6 SCC 172. The
Hon’ble High Court of A.P by following the above said decisions held that
the search of a person indicates search of the body of the person but not other belongings like hand bags, suit cases etc. as such when there is search of a person, then only the procedure contemplated under section 50 of the Act has to be resorted to, as held in between Bodaband Sundar
Sing Vs. State of A.P., reported in 2001 (2) ALD (Crl.) 928 (AP). In view of the above citations, here the recovery is not on the basis of search made on the body of the accused hence question of the applicability of Sec.50 of NDPS Act does not arise.
27.Now it has to be looked into whether the evidence of the media tor is reliable or not?
28.From the evidence of PW2, it shows that no notice was served to
Bus Conductor and Driver before checking the bus and he admits that in 21
Ex.P3 mediators report the name of the translator who assisted while examining the Accused Nos.1 and 2 was not disclosed and even the contents does not reflect that they were readover and explained. Though
PW2 denied that he obtained signature of the mediator and subsequently prepared the mediators report and also denied that the drivers and conductor of the bus did not know Telugu language and they cannot read and write Telugu but the mediator who was examined as PW1 stated that he did not know to read and write Telugu and the contents were not read over and explained to him. Further the contents of mediators report about the taking of Ex.P4 photograph. All these aspects create a doubt as to the presence of mediators at the time of seizure of contraband.
29.On perusal of the mediators report, there was an endorsement in
Telugu that the above contents were explained in Hindi language by translating the same and the same are true and also copy received.
Though there were signatures of Accused Nos.1 and 2 in Telugu but there is no mention as to who translated the contents to the accused persons and even Ex.P3 does not reflect about the lifting of samples from each of the bags.
30.After the contraband is seized, as per Sec.52(A)(2) of NDPS Act,
Section 52A(2) in The Narcotic Drugs and Psychotropic Substances Act, 1985, the Officer shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such 22 other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country or origin and other particulars as the officer referred to in subsection (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 correctness of the inventory so prepared and to take photographs of such drugs or substances in the presence of such Magistrate and certifying such photographs as true and allowed 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.
31.A petition was filed by the Prohibition & Excise Inspector before the
J.F.C. Magistrate, Rampachodavaram under Sec.52(A)(2) of NDPS Act, 1985 and thereafter samples were drawn before the Magistrate i.e., 100 grams of dry Ganja from 14.4 Kgs of contraband seized from the possession of Accused No.1 of dry Ganja and 50 grams of dry Ganja from 9.6 Kgs of dry Ganja seized from Accused No.2 and certificate was also issued by the Magistrate as to the inventory and to the correctness of inventory and samples as per subsection 4 of 52(A) of NDPS Act.
32.Thereafter a letter was addressed by PW2 vide Ex.P9 to the
Chemical Examiner that the samples drawn were sent for Chemical
Analysis through P.Mannebhai, Prohibition & Excise Constable. The letter of advice under Ex.P8 bears the signatures of Prohibition & Excise 23
Inspector, Chintoor, which shows that on 23.08.2018 it was sent and so far as the date mentioned before the signature of Prohibition & Excise
Inspector, Chitoor, it shows that the earlier date number was erased and covered with white fluid and number '3' was written on it. So, it took almost one month time to send the same for chemical analysis and the report was received vide Ex.P11 which shows that the samples at serial
No.18108 and 18109 are Ganja relating to Crime No.109/2018. So, there is a delay in sending the contraband for chemcial analysis. In the letter sent by the Assistant Prohibition & Excise Superintendent,
Rajamahendravaram, to the Chemical Examiner under Ex.P9, the specimen signatures of the said P.Mannebhai through whom the material was sent to Chemical Examiner were not found.
33. Further vide Ex.P10 a letter was addressed by the Prohibition &
Excise Inspector, Chintoor to the Chairman (Deputy Commissioner of
Prohibition & Excise), Drug Disposal Committee, Kakinada along with the contraband to issue necessary orders for disposal of the case. So far as the inventory is concerned, it was done in time and it shows that the application was made on the same day of seizure of contraband and even the photograph depicts the presence of Magistrate etc. There is no descrepancy so far as the inventary proceedings is concerned but the material was sent for chemical examination after almost one month's period has been elapsed.
34.As per the version of prosecution, the sample was seized on 24 24.07.2018 and on 25.07.2018 it was produced before the Magistrate and as per the date of letter of advice it shows on 23.08.2018 and the samples were sent to laboratory for analysis on 28.08.2018. So there is a delay of almost one month's period in sending the samples to the
Chemical Examiner for analysis but as per Sec.55 of NDPS Act, 1985, meanwhile the said seized articles are to be kept in the safe custody of
Officer Incharge of the police sttion. There is no document filed to show that the said seized articles in this case were kept in proper custody that too in the proper form.
35. After completion of the entire proceedings as per Sec.57 of NDPS
Act, a report of arrest and seizure shall forthwith, within 48 hours, to the immediate superior officer by making a full report and particulars but there is a letter addressed to the prohibition and excise superintenden,Rajamahendravaram and it is containing seal of prohibition and excise office, Rajahmahendravam. On perusal of said document there is no dispatch no and also no endorsement of receiving the same by the excise officials. So it is self serving document and seems to be fabricated.
36.Though the PW1 stated that Excise Inspector lifted 100 grams of Ganja each from the bags of Accused Nos.1 and 2 and placed them in newspaper cover. In the crossexamination of this witness, it was elicited that on the samples MOs.11 and 12 there is no identity slips is affixed and the samples which were produced did not contain any lac seal. First 25 thing is that in the mediators report it was not disclosed as to picking up the samples in the presence of the mediators at the scene of offence i.e., where the bus was stopped or in the bus and further it is not clarified whether sample sent to the Forensic Science Laboratory for analysis were returned or not. As per letter of advice, it shows that the sample was picked up by the Magistrate was forwarded to the analysis. So, though the samples if at all lifted from each bags of the accused in the presence of mediators i.e., MOs.11 and 12 which was produced before the Court does not contain any lac seal, without there being any lac seal, there is every chance of tampering them. First of all though the mediator stated that the sample was picked in his presence but the mediators report does not disclose the same and even the Investigating officer also does not state the same and even PW2 states that the samples were lifted in the presence of Magistrate, Rampachodavaram, the samples picked up while the inventary proceedings are taken place and those were sent to analy sis. Hence, there is no clarity that where the samples produced before the Court, were lifted. Even the PW2 confirms in his crossexamination that samples were not lifted in the presence of accused. There is no cover enclosing to the samples MO.11 and MO.12 marked in the Court showing that they were returned from the Laboratory but on the identity slips there is an endorsement of the Magistrate. There is no clarity as to
before the Magistrate how many samples were picked up. So far as the
samples picked up were forwarded to the Chemical Examiner, the said report was also there. So, the evidence of mediator/PW1 as to picking up 26 of samples in his presence is false along with the other suspicious cir cumstances to show that he acted as a mediator in this case.
37.In view of the above discussion, the following are the manda tory provision i.e., under Sec.42 of the Act was not followed stating that information was not secured earlier and there is no signal point (tele phone) where the vehicle was stopped and seizure of the contraband has taked place cannot be relied. The Excise Inspector ought to have taken some efforts in this regard to intimate the same to his superior officer.
Further when coming to follow the Sec.42(2) of the Act, no efforts have been made out to the superior officer, as on the record a report under
Sec.57 of the Act was available but even in the said letter also there is no dispatch number and also receive endorsement by the superior excise of ficials. Hence, it can be said that it was subsequently fabricated in order to suit their case and whereas there is no personal search through which the contraband was seized as it was seized from three bags as alleged.
So, question of application of Sec.50 of the Act does not arise.
38.In view of the above discussion, there were many descrepancies in the evidence of mediator/PW1 who states that he was not read over and explained about the contents of mediators report/Ex.P3 and he does not know to read and write Telugu language and even on perusal of the
Ex.P3 mediators report, there is no endorsement of the translator who has interpreted the same. Further the mediator/PW1 has stated that the samples were seized in his presence but there is no mention in this re 27 gard in the mediators report/Ex.P3. When the mediator resiled from his version in the crossexamination in such a case the prosecution ought to have sought permission from the Court to crossexamine him to elicit the true facts. So, there were many descrepancies in the evidence of media tor/PW1. Further the mediator/ PW1 has stated about the picking up of the samples in his presence was doubtful as the samples were picked up in the presence of the Magistrate and the same were sent for analysis.
Even in Ex.P4 photograph of the scene of offence he is not available. So, all these aspects cumulatively shows that the presence of mediator is doubtful at the time of above procedure that was taken place.
39.Further the investigating agency failed to forward a report un der Sec.57 of the Act. Though a letter was available in the record, which was not marked by the prosecution, even there is no dispatch number on it and also as to the picking up of the samples is also doubtful, as the samples which were marked before the Court does not contain any lac seal. Even there is no clarity whether they were produced by the investi gating officer or from the Forensic Science Laboratory and there should be some seal to show whether they returned from Forensic Science Labo ratory after examining the same. Further the investigating agency has failed to explain as to why the samples were sent to Laboratory for chem ical examination after lapse of almost one month period after seizure of the same. Moreover, there is no clarity/whisper with regard to the safe custody of the samples also. All these aspects as discussed above, in en 28 tirety shows the prosecution fails to prove its case beyound all reason able doubt against the accused No.1.
40.In the result, the accused No.1 is found not guilty for charge punishable under Sec.8(c) r/w 20(b)(ii)(C) of the Narcotic Drugs and Psy chotropic Substances Act, 1985, and he is acquited of the same under
Sec.235(1) Cr.P.C. The property order with regard the Mos.1 to 16 shall be passed at the time of disposal of case against the absconding accused i.e., accused No.2 in NDPS SC No.72/2019. The accused No.1 shall be released forthwith, if he is not required in any case.
Dictated to the StenographerGr.II, transcribed by him, corrected
and pronounced by me in open court, this the 29th day of January, 2021. Sd/ Smt. M.Babitha
PRINCIPAL SESSIONS JUDGE
(FAC) I ADDITIONAL SESSIONS JUDGE,
RAJAMAHENDRAVARAM.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Prosecution: PW1: Giridha Pathra PW2: S.Manikantha Reddy
For defence: None
DOCUMENTS MARKED
For Prosecution: Ex.P1: Aadhar Card of Accused No.2 Ex.P2: State Bank of India ATM Card Ex.P3: Mediators report dated 24.07.2018 (occurrence report) Ex.P4: Photograph(1) Ex.P5: First Information Report Ex.P6: Annexure I of Inventory and Petition under Sec.52(A) of the Act Ex.P7: Photographs (2) Ex.P8: Letter of Advice Ex.P9: Letter of A.S.P, Excise, to Chemical Examiner Ex.P10: Letter to Chairman Drug and Disposal Committee, Kakinada Ex.P11: Chemical Analysis Report 29
For Defence : Nil Material Objects Mos.1 to 8 are the Ganja Packets (8 in number) MO.9 and 10 are the Ganja Packets (2 in number) MO.11 is the sample packet MO.12 is the sample packet MO.13 is the Lava keypad mobile MO.14 is the Cash of Rs.200/ MO.15 is the Chilly Keypad mobile MO.16 is the cash of Rs.150/
Sd/ Smt. M.Babitha
PRINCIPAL SESSIONS JUDGE
(FAC) I ADDITIONAL SESSIONS JUDGE,
RAJAMAHENDRAVARAM.
TABULAR FORM ANNEXED TO THE JUDGMENT IN NDPS SC No.2/2019 30
ON THE FILE OF I ADDITIONAL SESSIONS JUDGE (CUM – SPECIAL
SESSIONS JUDGE FOR TRIAL OF THE CASES UNDER THE NARCOTIC
DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985): EAST GODAVARI DISTRICT: RAJAMAHENDRAVARAM: UNDER RULE 348 OF
THE CRIMINAL RULES OF PRACTICE
1Sessions Case No. : NDPS SC No.2/2019 2Name of the Police Station : State represented by the Prohibition
and
Excise Inspector, Chintoor Prohibition and Excise Station 3Name of the Accused and 1. Bharath Sesharao Ambedkar, particularsson of Sesharao, aged 37 years, C/o.Teli,R/o.PathurVillage, Pathur Thaluka, Jalna District, Maharastra State (Accued No.1)
2. Papa Sankar Rathod, S/o.Sankhar, aged 38 years, C/Banjaea,R/o.LaneNo.3, Jogeswara Wadi Jamkhed Post, Ambed Talluka, Jalna District, Maharashtra State (Accused No.2) The case against the Accused No.2 is split up and renumbered as NDPS SC No.72/2019 4Date of offence: 24.07.2018 5Date of complaint: 24.07.2018 6Date of appearance: 08.08.2018 (U.T.P) 7Date of committal 8Date of commencement of trial:
9Date of closure of trial: 16.03.2020 10Date of Sentence of Order: 29.01.2021
SENTENCE/ORDER: the accused No.1 is found not guilty for charge punishable under Sec.8(c) r/w 31 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985, and he is acquited of the same under Sec.235(1) Cr.P.C. The property order with regard the Mos.1 to 16 shall be passed at the time of disposal of case against the absconding accused i.e., ac cused No.2 in NDPS SC No.72/2019. The accused No.1 shall be released forth with, if he is not required in any case.
11Explanation for the delay: No delay
I Addl. Sessions Court, E.G. District, Rajamahendravaram.
Sd/ Smt. M.Babitha
PRINCIPAL SESSIONS JUDGE
(FAC) I ADDITIONAL SESSIONS JUDGE,
RAJAMAHENDRAVARAM.
32