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IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF I CLASS FOR
PROHIBITION AND EXCISE OFFENCES, KADAPA.
Present: N.Hemalatha, B.A., L.L.B.,
Special Judicial Magistrate of I Class for Prohibition & Excise Offences, Kadapa.
Thursday, this the 26th day of April, 2012.
Calendar Case No. 152 of 2011
State: Represented by the Prohibition and Excise Inspector, Prohibition and Excise Station, Kadapa. . . . . Complainant .
Vs.
Kadapa Venkatesu son of Chinnaiah, 60 years, D.No.41903, Nagarajupeta, Kadapa.
. . . . Accused.
This case coming on 24.4.2012 for final hearing before me in the presence of the learned Assistant Public Prosecutor GradeII for the complainant and of Sri S.Masthan Valli, Advocate for accused and upon perusing the records after hearing on both sides having stood over for consideration till this day, this court delivered the following:
::J U D G E M E N T::
The Proh & Excise Inspector, Prohibition and Excise Station, Kadapa filed a charge sheet in Cr.No.59 of 201112 for the offence punishable under
Section 8 (c) read with 20(b)(ii)(A) of Narcotic Drugs and Psychotropic
Substances Act, 1985 against the accused.
2. The allegations against the accused in the charge sheet in brief are as follows: on 14.6.2011 at about 6.45 p.m L.W.3 the Excise Inspector,
Kadapa along with his staff on routine raids reached the house of accused situated at Nagarajupeta, Kadapa and found him while sitting in front of your house. On search of the house of accused in the presence of Kadapa VAO and
Thalari they found one paper pocket tied with twine on the eaves of southern 2 wall of kitchen room. Then he opened the pocket and found one Kg of ganja with leaves, seeds and flowering tops. Then they weighed with the balance available in the house of accused and noticed that the same was in one Kilogram and lifted 20 gms of ganja for chemical analysis, sealed and labelled the same so also the remaining property. On interrogation accused revealed his name and identity particulars and further confessed that he purchased 1 Kg ganja for Rs.800/for selling the same at Rs.20/ per gram. Then he seized the entire property and arrested the accused under the cover of panchanama. Basing on the said panchanama he registered this case and investigated into. During the course of investigation he sent the sample to the chemical analyst and obtained her report to the effect that the sample is ganja. After completion of investigation the
Prohibition and Excise Inspector, Kadapa filed the charge sheet.
3. The cognizance of the offence was taken under Section 8(c) read with 20(b)(ii)(A) of NDPS Act.
4. On appearance of the accused copies of documents were furnished to him as contemplated under Section 207 Cr.P.C.
5. The accused was examined under Section 239 Cr.P.C. Charge under Section 8(c) read with 20(b)(i) of Narcotic Drugs and Psychotropic
Substances Act was framed, read over and explained its contents to the accused in Telugu for which he pleaded not guilty and claimed the case to be tried.
6. To prove its case, prosecution has examined P.Ws.1 to 3 and got marked Exs.P.1 to P.5 and M.Os.1 and 2.
7. After closure of prosecution evidence, accused was examined under Section 313 Cr.P.C for the incriminating material available in the evidence of prosecution witnesses. For which the accused denied the same and submitted that he has no defence evidence.
8. Heard both sides.
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9. Now the point for consideration is that:
Whether the prosecution proved the guilt of the accused beyond all reasonable doubt for the offence under Section 8(c) read with 20(b)(i) of Narcotic Drugs and Psychotropic Substances Act
A.P.Prohibition Act, 1995 ?
10. POINT:The case of the prosecution is that during the raids conducted by P.W.2 the Prohibition and Excise Inspector,Kadapa along with
P.Ws.1 and 3 reached the house of accused and found that the accused was sitting in front of the house and on suspicion they searched the house of accused and found one packet containing one Kilogram Ganja. Hence, this case.
11.To prove the said contention, prosecution has examined P.Ws.1 to 3 and got marked Exs.P1 to P5 and M.Os.1 and 2. P.W.1 is the Village Servant.
P.Ws.2 and 3 are the Excise officials. Ex.P1 is the panchanama under which
M.Os.1 and 2 were seized and the accused was arrested. Ex.P.2 is the rough sketch of the scene of offence. Ex.P3 is the FIR under which the case was registered against the accused. Ex.P4 is the letter of advice through which M.O.1 was sent to Chemical Examiner and Ex.P5 was the Chemical Examiner's report pertaining to M.O.1.
12. The evidence of prosecution witnesses in brief are as follows:
P.W.1 M.Sreenivasulu, Village Servant deposed that on 14.6.2011 at about 6.30 p.m as per requisition of L.W.3 K.Janakiram, Proh. & Excise Inspector he went to the house of accused situated at Nagarajupet and at the request of L.W.3 he called VRO L.W.1 Sreenivasulu who came to the house of accused. Then they searched the house of accused and found one Kg. Ganja pocket at the southern side of the house. On enquiry accused confessed that he is selling the ganja in small pockets for Rs.10/. Then L.W.3 Janakiram lifted the ganja for chemical examination and seized the entire property under the cover of panchanama which is marked as Ex.P1. M.O.1 is the sample.
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13. P.W.2 K.Janakiram, Proh. & Excise Inspector deposed that on 14.6.2011 at 6.45 p.m they reached the house of accused bearing Door No.1903,
Nagarajupet, Kadapa along with his staff and mediators and on search they found a paper pocket in the eaves the house towards south. On verification of the pocket they found leafy substance containing seeds, stalks flowering and fruiting of dry ganja emitting pungent odour. Then he weighed and found it to be 1 Kg.
Then he collected 20 grams of ganja in the presence of mediators sealed and labelled the same seized the property and arrested the accused under the cover of panchanama marked as Ex.P1. He prepared the rough sketch of the scene of offence marked as Ex.P2. Basing on the panchanama he registered this case and during the course of investigation he sent the sample to the Chemical Examiner and obtained his report to the extent that the sample is ganja.
14. B.Krishna Naik, Head Constable, Proh. & Excise deposed that on 14.6.2011 he accompanied P.W.2 and proceeded for general raids and reached to the house of accused at 6.45 p.m situated at Nagarajupet and by that time accused was present in the house. During the search of the house of accused they found 1 Kg ganja in a paper packet. Then they seized the ganja from the house of accused and arrested the accused under the cover of panchanama.
15. The learned counsel for the accused argued that the search was not conducted as per the Rules of the Act. The seizure if ganja from the possession of accused was not proved by subsisting evidence. The learned counsel for the accused further argued that this is false case foisted against the accused for statistical purpose and there is seizure of ganja from the house of accused.
16. In the instant case P.W.2 one Kilogram ganja from the house of accused in the presence of P.W.1 and P.W.3. P.W.1 is the Village Servant. He admitted that P.W.2 did not issue any summons to him to act as mediator. He 5 further admitted that accused is having weighing machine but the Excise Officials did not seize the weighing machine. He categorically stated that he put only one signature on the date of incident. P.W.2 is the Excise personnel. He supported the admission of P.W.1 to the extent that he did not issue any summons to the persons presented at the scene of offence. On perusal of the evidence the scene of offence is surrounded by residential houses and at the time of incident there was crown at the scene of offence. But P.Ws.2 and 3 did not try to secure the persons residing around the scene of offence. The explanation of P.W.2 is that he asked some of the persons to act as mediator but they refused to do so. P.W.2 failed to state the names of the persons to whom he asked to act as mediators. As per the prosecution case, M.Os.1 and 2 seized from the house. But the investigating officer failed to prove that the accused is the owner of the scene of offence by adducing any cogent evidence. The investigating officer even did not try to secure the neighbouring owners to prove the fact that the accused is the owner of the house in which they seized M.Os.1 and 2.
17. Section 50 of the Act provides that, (1) when any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so 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.
18. Section 43 pertaining to the power of seizure and arrest in public places.
19. Section 42 of the Act provides that (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 interlligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such 6 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 personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence 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 place;.....
20. Provided that if such officer has reason to believe that a search warrant or authorisation 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 forthwith send a copy thereof to his immediate official superior.
21. In the instant case, as a routine raid P.W.2 went to the house of accused and noticed that the accused is habitual offender relating to ganja.
P.W.2 went to the house of accused along with P.W.3 at about 6.45 p.m then he sent P.W.3 to secure P.W.1 and when P.W.1 and P.W.3 reached the scene of offence P.W.2 requested P.W.2 to call VRO and at the request of P.W.2, P.W.1 called VRO L.W.1 Sreenivasulu who came to the scene of offence. Then only
P.W.2 conducted search of the house of accused in the presence of P.W.1, 3 and
VRO Sreenivasulu. The seizure and search are not conducted by P.W.2 as per the procedure laid down in the Act. P.W.2 admitted that he did not ask the 7 accused if they want to search before another Gazetted Officer as it happens only in case of personal search and the said fact was not mentioned in Ex.P.1. In the said circumstances, I hold that there is force in the arguments of the learned counsel for the accused to the extent that P.W.2 did not follow the rules while searching the closed premises.
22. In the above circumstances, I hold that the prosecution miserably failed to prove the case against the accused beyond all reasonable doubt. Hence, the accused is entitled to the benefit of doubt.
23. In the result, accused is found not guilty for the offence punishable under Section 8(c) read with 20(b)(i) of Narcotic Drugs and
Psychotropic Substances Act and he is acquitted under Section 248(1) Cr.P.C for the said offence. His bail bonds shall stand discharged.
M.Os.1 and 2 shall be destroyed after appeal time is over.
Typed to my dictation, corrected and pronounced by me in the open court, this the 26th day of April, 2012.
Sd/ N.Hemalatha,
SPECIAL JUDICIAL MAGISTRATE OF I CLASS
FOR PROHIBITION AND EXCISE OFFENCES,
KADAPA.
Appendix of evidence witnesses examined for
Prosecution Defence :Nil.
P.W.1 : M.Sreenivasulu, Village Servant. P.W.2 : K.Janakiram, Excise Inspector. P.W.3 : B.Krishna Naik, Proh. & Excise Head Constable.
Exhibits marked for Prosecution:
Ex.P.1 : Panchanama dt.14.6.2011 at 6.45 p.m.
Ex.P.2 : Rough sketch of the scene of offence.
Ex.P.3 : FIR in Cr.No.59 of 201112 of Excise Station, Kadapa.
Ex.P.4 : Letter of Advice
Ex.P.5 : Chemical Examiner report.
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Exhibits marked for Defence: Nil.
Material objects marked for
M.O.1 : Sample of Ganja packet. M.O.2 : Remaining Ganja packet.
Intld/N.H.L.,
Spl. J.F.C.M. for P&E., Kdp. // True Copy //
SPECIAL JUDICIAL MAGISTRATE OF I CLASS
FOR PROHIBITION AND EXCISE OFFENCES,
KADAPA.