Smt P.Annapoorna

IN THE COURT OF THE I ADDITIONAL DISTRICT JUDGE,

SRIKAKULAM.

Present: Smt. P.Annapurna, I Addl.District Judge, Srikakulam

WEDNESDAY, THIS THE 9TH DAY OF MARCH, 2022 (09-03-2022)

APPEAL SUIT No.131 of 2019

Between:

Botcha Suri Babu, S/o late Sanyasi, Hindu, aged about 65 years, R/at Buridikancharam village, Ponduru mandalam, Srikakulam district.

.. Appellant/1st defendant.

And:

1.Smt.Pothina Kameswari, W/o late Satyanarayana, Hindu, aged 50 years, R/at Door No.1-48, P.M.Palem, Madhurawada, Visakhapatnam District. …Respondent/Plaintiff

2.Botcha Raju, S/o Suri Babu, Hindu, aged about 33 years, R/at Buridikancharam village, Ponduru mandalam, Srikakulam district.

3.Botcha Ramana, S/o Suri Babu, Hindu, aged about 29 years, R/at Buridikancharam village, Ponduru mandalam, Srikakulam district.

….Respondents/defendants 2 and 3

Appeal filed against the Decree and Judgment made in

O.S.No.209/2013, dated 04.01.2019 on the file of Principal Junior Civil

Judge, Srikakulam.

Between:

Smt.Pothina Kameswari

.. Plaintiff.

And:

1.Bothcha Suri Babu

2.Bothcha Raju

3.Bothcha Ramana

..Defendants.

This appeal coming on 25.02.2022 for final hearing before me in the presence of Sri Gorle Sowjanya Laxmi, Advocate for the appellant/1st defendant and of Sri T.Lakshmi Naidu, Advocate for the respondent/plaintiff and Respondents /Defendants 2 & 3 having been called absent and set exparte; and having heard both sides and having stood over till this day for consideration, this court made the following:

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J U D G M E N T

1. The appellant, who is the 1st defendant, aggrieved by the Decree and

Judgment passed in O.S.209/2013 by the learned Principal Junior Civil

Judge, Srikakulam, dated 04.01.2019 in the said suit, preferred this appeal.

The parties as arrayed in the said suit are referred to as such in the

Judgment for the sake of convenience.

2. The brief pleadings are as follows:

The plaintiff is the absolute owner and possessor of the land measuring Ac.4.69 cents in S.No.60/19 & 60/21 of S.M.Puram village of

Etcherla mandal, Srikakulam district, having purchased the same under registered sale deed dated 14.07.2021 under document No.2399/2011 of

District Registrar, Srikakulam, duly executed by one Smt. Botcha

Atchiyamma and her two sons, who are no other than the defendants 2 and 3.

The plaintiff further submits that apart from the plaint schedule property, the plaintiff also purchased some other extents of the land in

S.No.60/21, 60/18 & 60/20 from different Ryoths and the plaintiff approached the revenue authorities to mutate her name in the revenue records and also for issue of pattadar pass book and title deed in her name for the entire extents she purchased. The revenue authorities after verifying the title and possession of the plaintiff issued pattadar pass book and title deed in the name of the plaintiff for all the lands purchased by her. the name of the plaintiff was also mutated in all the concerned records of the revenue department.

The plaintiff further submits that she is lady, residing far away from the suit schedule land and thereby her husband during his life time used to look after her affairs and she lost her husband during last year and since then her only son Srinivas look after her properties including the plaint 3

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schedule property. While things stood thus, the son of the plaintiff by name

Srinivas engaged ploughmen in the suit schedule land for ploughing the entire suit schedule land. On 25.12.2013, all the defendants came to the suit schedule land and obstructed the ploughmen engaged in the land from doing ploughing. However, the son of the plaintiff, with great difficulty drew away all the defendants from the plaint schedule land. While leaving the premises, all the defendants warned the son of the plaintiff that they would not allow the plaintiff to be in peaceful possession of the plaint schedule land and also further threatened that unless the plaintiff sell away the schedule land and leave the village, her life and property would be in danger.

The plaintiff, therefore apprehends in the circumstances that the defendants may at any time enter the land of the plaintiff and dispossess her of the land by force. Though the son of the plaintiff made a report of the incident to the police, they have not taken any action against the defendants in view of the influence of the defendants, since they happened to be the local, while the plaintiff is the outsider. In fact, the defendants does not have any right, title or any interest over the suit schedule site and the defendants 2 & 3 and their mother sold the property to the plaintiff by receiving proper sale consideration from the plaintiff. Since from the date of purchase, the plaintiff has been enjoying the said property without any body's interference including the defendants. The defendants are highly influential local persons having much influence and muscle power and they can materialize their threat at any point of time. Under those circumstances, unless this court grants injunction restraining the defendants from interfering with the plaint schedule property, the plaintiff being outsider can not protect her property. In those circumstances, the plaintiff has no other alternative except to seek the necessary relief from a court of law preventing the defendants from interfering with the plaintiff's peaceful possession and 4

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enjoyment of the plaint schedule land. Hence, the suit for permanent injunction.

03. The 1st defendant filed his written statement and denied the plaint allegations and contended that he is the co-owner of the plaint schedule property having half share along with his wife by name Botcha Atchayamma in the light of registered settlement deed dated 27.11.1974 executed by

Volla Poli Naidu, Kannam Naidu, Appala Nadu and Sanyasi Naidu infavour of this defendant and his wife. Volla Poli Naidu, Kannam Naidu, Appala

Naidu are his brother-in-laws and brothers of his wife and Volla Sanyasi

Naidu is the nephew of the wife of this defendant since he is the son of Vola

Polinaidu. This defendant and his wife are the absolute owners of the plaint schedule property who are having valid title, possession and enjoyment over the plaint schedule property since from the registered settlement deed

dated 27.11.1974 without any interruption or interference from anybody

including the plaintiff till today.

This defendant submits that recently he came to know that his wife and his sons who are defendant Nos.2 and 3 colluded with the plaintiff and created the alleged sale deed dated 14.07.2011 which is false and fictitious document with regard to the suit schedule property without his knowledge and consent behind his back with a dishonest intention to cause wrongful loss to this defendant and to have wrongful gain for them. The wife of this defendant and his sons are not entitled to execute any sort of sale deed exclusively to anybody without his consent and knowledge and so the alleged sale deed dated 14.07.2011 is void ab-initio and it is to be annulled. In this connection, the plaintiff is not entitled to get any title, possession and enjoyment over the suit schedule property and as such this defendant cannot be restrained by way of perpetual injunction or ad-interim injunction 5

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since he is the co-owner of the suit schedule property along with his wife by name Botcha Atchayyamma.

This defendant further submits that the names of himself and his wife are incorporated in the relevant revenue records and this defendant is paying the land revenue to the government with regard to the suit schedule property. The possession of the suit schedule property was never transferred to the plaintiff and as such the plaintiff was not in a possession and enjoyment over the suit schedule property at any point of time. The alleged documents filed by the plaintiff are not at all true and valid and binding on the defendant since they are created and concocted by colluding with the defendants 2 and 3 as well with the concerned revenue authorities.

This defendant further submits that he is enjoying the suit schedule property by raising crops like maize, sugar cane and black gram etc., since 1974 onwards. There are no bonafide grounds in the plaint. There is no cause of action for the suit. The suit is not maintainable according to law.

This suit is liable to be dismissed in limini by granting exemplary costs to this defendant. This Court has no jurisdiction to entertain the suit in view of its market value. Hence, prays to dismiss the suit with costs.

04.The defendant Nos.2 and 3 filed their written statement and denied the plaint allegations and contended that this defendants and their mother by name Botch a Atchayamma have executed a registered sale deed dated 14.07.2011 in favour of the plaintiff but the physical possession of the suit schedule land was not delivered to her since the plaintiff has not paid the entire sale consideration to them.

These defendants further submits that their mother has borrowed two different loan amounts i.e., Tractor loan of Rs.4,50,000/- in the year 2007 and crop loan of Rs.1,50,000/- in the year 2009 from Andhra bank, Lolugu branch by executing simple mortgage deed with regard to the suit schedule 6

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property as security and the same act was disclosed to the plaintiff at the time of entering into the sale agreement of the suit schedule property.

According to the plaintiff agreed to discharge the said loan amounts with interest thereon out of the sale consideration but the plaintiff has given assurance to these defendants and their mother that she will discharge the said loan amounts with interest to the concerned bank immediately on the next day of the execution of the registered sale deed dated 14.07.2011. In that connection the plaintiff has deducted Rs.6,50,000/- out of the total sale consideration of Rs.14,07,000/- to discharge the loans due to the bank.

The plaintiff has given further assurance that she will discharge amounts.

Accordingly with the direction of the plaintiff, her son by name Pothina

Srinivas has got executed a consent agreement deed (Voppudala Patram)

dated 14.07.2011 before the attestors and elders including the vice

Chairman, Zilla Parishad Srikakulam by name Chowdary Narayana Murthy on the day of execution of registered sale deed itself, by agreeing to discharge the said loans to the concerned bank immediately after the next day of execution of the registered sale deed dated 14.07.2011. Contrary to the said Voppudala Patram, the plaintiff and her son have miserably failed to discharge the said loans to the bank as per the said consent agreement deed even till today. The plaintiff for her son never approached these defendants to get delivery of possession for the plaint schedule property even till today.

These defendants further submits that the plaintiff and her son are liable to discharge the loan amounts due under tractor loan and crop loan stands in the name of their mother, since the plaintiff has deducted the amount of Rs.6,50,000/- out of sale consideration and kept with her to discharge the loan amounts. But after getting execution of registered sale deed dated 14.07.2021, the plaintiff and her son have failed to discharge the 7

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same by violating the terms of the Voppudala Patram dated 14.07.2011 and cheated these defendants with a dishonest intention to get wrongful gain for themselves. The physical possession of the suit schedule property was never transferred to the plaintiff and as such the plaintiff was not in a possession and enjoyment over the suit schedule property at any point of time. The alleged documents filed by the plaintiff are not at all true and valid and binding on these defendant since they are created and concocted by colluding with the defendants 2 and 3 as well with the concerned revenue authorities.

These defendants further submits that there are no bonafide grounds in the plaint. There is no cause of action for the suit. The suit is not maintainable according to law. Therefore, the suit is liable to be dismissed.

05. Basing on the above pleadings, the following issues were settled for trial in the trial court:

1. Whether the plaintiff is in possession and enjoyment of plaint schedule property ?

2. Whether the plaintiff is entitled for permanent injunction as prayed for ?

3. If so to what relief ?

06. On behalf of plaintiffs, PWs 1 to 3 were examined and Ex.A.1 to

Ex.A.4 were marked. On behalf of the defendants DWs 1 to 3 were examined and Ex.B.1 and Ex.B.2 were marked.

07. Upon considering the oral and documentary evidence adduced on both sides and their respective contentions, the Principal Junior Civil

Judge, Srikakulam decreed the suit by granting permanent injunction,

restraining the defendants, their men, workers, followers, agents etc., from trespassing into or in any way interfering with the peaceful possession and 8

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enjoyment of the plaintiff over the suit schedule land. Aggrieved by the impugned Judgment passed by the trial court on 04.01.2019, the 1st defendant preferred the appeal on several grounds.

1. The decree and judgment of the trial court is contrary to law, weight of evidence and probabilities of the case.

2. The trial court failed to observe that the respondent miserably failed to establish the possession over the suit schedule property as on date of filing of the suit.

3. The trial court gave much weight to Ex.A.1 sale deed, Ex.A.2 pattadar pass book, Ex.A.3 title deed and Ex.A.4 adangal obtained from meeseva dated 27.12.2013 filed by the respondent than the documents field by the appellant Ex.B.1 certificated copy of the registered settlement deed dated 27.11.1974, Ex.B.1 land revenue receipt dated 12.08.1991.

4. The trial court failed to observe that the PW.1 admitted in her cross examination that she could not file any document to prove their possession over the schedule property except the Ex.A.1 to Ex.A.4.

5. The trial court give much weight of Ex.A.2 pattadar pass book,

Ex.A.3 title deed, Ex.A.4 adangal obtained from meeseva dated 27.12.2013, filed by the respondent to confer the possession over the schedule property even though the Ex.A.1, Ex.A.3 and Ex.A.4 obtained from meeseva dated 27.12.2013 , no documents of prima facie file to prove any possession of the respondent over the schedule property.

6. The trial court give much weight of Ex.A.1 to Ex.A.4 from meeseva

dated 27.12.2013 which are recently 8 years documents filed by the

respondent but failed to observe that the 8 years old document confers right only but not possession.

7. The trial court failed to observe that the documents filed by the appellants i.e., Ex.B.1 and Ex.B.2 which are the revenue records stands in the name of the appellant but the trial court not considered the said documents and discussed that the said documents are not sufficient to confer the possession to the appellants over the schedule property even though the respondent not filed any revenue records in her name.

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8. The trial court failed to observe that the appellant herein dispute the execution of Ex.A.1 sale deed by the appellants in favour of the respondent at the stage the property was got by the appellant No.1 and his wife through Ex.B.1 registered settlement deed dated 27.11.1974.

9. The trial court failed to observe that the wife of appellant No.1 and sons are not entitled to execute any sort of sale deed exclusively to anybody without his consent and knowledge and so the alleged

Ex.A.1 is void ab-initio and it is to be possession and enjoyment over the suit schedule property and as such the appellant No.1 cannot be restrained by way of perpetual injunction or ad-interim injunction since the appellant No.1 is the co-owner.

10.The trial court failed to observe that the names of appellant No.1 and his wife name are incorporated in the relevant revenue records and the appellant No.1 is paying the land revenue taxes to the government with regard to the suit schedule property.

11.The trial court failed to observe that the appellant No.1's wife has borrowed two different loan amounts i.e., Tractor loan of

Rs.4,50,000/- in the year 2007 and crop loan of Rs.1,50,000/- for the year 2009 from Andhra Bank, Lolugu branch by executing simple mortgage deed with regard to the suit schedule property as security.

12.The trial court failed to observe that the Ex.A.1 sale deed is not a valid document.

13.The trial court failed to consider that there is no corroboration of evidence of PW.1 and PW.2 and helpful of the case.

14. The trial court failed to consider that since the property was got by both the appellant and respondent No.2 and the appellant is a co-owner and the suit itself is not maintainable under law and liable for dismissal.

15.The trial court ought to have dismissed the suit.

16.The trial court ought ot have not consider the evidence of the appellant as the alleged Ex.A.1 is not supported with any consideration.

17.This appeal is maintainable under law.

08. Both counsels present and heard. Written arguments filed by the both the counsels.

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09. Upon considering the rival contentions and on perusing available record, the points that arises for determination in appeal are as follows:

(1) Whether the Judgment of the trial court suffers from any infirmity and if so to what relief?

(2) Whether the Judgment and Decree dated 04.01.2019 passed by the learned Principal Junior Civil Judge, Srikakulam in

O.S.No.209/2013 is liable to be set aside or confirmed and if so, to

what relief?”

10. POINTS No.1 AND 2:-

The perusal of record shows the appellant herein is the 1st defendant in the suit O.S 209/2013 on the file of Principal Junior Civil

Judge, Srikakulam and he filed this appeal against the decree and

judgment of the trial court dated 04.01.2019. Originally O.S 209/2013 has been filed by the plaintiff for grant of permanent injunction against the defendant Nos.1 to 3. After decreeing the suit, Defendant No.1 alone preferred this appeal against the respondents by showing the plaintiff as 1st respondent and Defendants 2 and 3 are shown as Respondent Nos.2 and 3 respectively, they remained exparte in the appeal and they did not contest the appeal and only the plaintiff / Respondent No.1 alone contested the appeal.

11. The learned counsel for the appellant/1st defendant contended that the trial court gave much weight to the documents marked as Ex.A.1 to

Ex.A.4 than the documents filed by the appellant marked as Ex.B.1 registered settlement deed dated 27.11.1974. Ex.B.2 land revenue receipt

dated 12.08.1991. The 1st respondent failed to establish the possession

over the suit schedule property as on the date of suit and PW.1 stated in her cross examination that she could not file any document to prove their 11

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possession over the schedule property except Ex.A.1 to Ex.A.4 and Ex.A.1 to

Ex.A.4 will not prove the possession through her possession over the schedule property as the documents which are recently 8 years documents filed by the respondent but failed to observe that the 8 years old document confers right only but not possession and the trial court not considered

Ex.B.1 and Ex.B.2 documents and hold that the said documents are not sufficient to confer possession of the appellant over the schedule property.

He further argued that the appellant disputed the execution of Ex.A.1 sale deed as the property was got by appellant and his wife through Ex.B.1 registered settlement deed dated 27.11.1974 and as such Ex.A.1 is vide ab- initio and either the wife of the appellant or his sons are not entitled to execute any sort of sale deed and appellant cannot restrained by way of perpetual injunction since the appellant is the co-owner. The trial court also did not observe the appellant's wife borrowed two different loan amounts which is tractor loan for Rs.4,50,000/- in the year 2007 and crop loan of

Rs.1,50,000/- in the year 2009 from Andhra Bank, Lolugu branch by executing simple mortgage deed with regard to suit schedule property as security.

12. The 1st contention of the appellant is that he is the co-owner of the schedule property and he has half share in the property covered by Sy

No.60 along with his wife Smt. Botcha Atchayamma by virtue of registered settlement deed dated 27.11.1974 executed by Volla Poli Naidu, Kannam

Naidu, Appala Nadu who are the brothers of his wife and Sanyasi Naidu son of Polinaidu who is the nephew of his wife and thus defendant No.1 has equal 1/2 share in the entire extent of the land covered by survey No.60 i.e., Ac 7.02 cents. But recently he came to know that his wife and sons colluded with the plaintiff and created Ex.A.1 sale deed dated 14.07.2011 and without his consent or knowledge of Defendant No.1, they cannot 12

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execute any document and sale is void and as the appellant is co-owner and he cannot be restrained by way of injunction, more so when he is in possession and enjoyment of the schedule property. The document dated 27.11.1974 registered settlement deed was marked as Ex.B.1.

13. The appellant counsel contended that item No.4 of the schedule of the said settlement deed, is land covered by survey No.60 to an extent of

Ac.7.02 cents. So if Smt.Botcha Atchayamma wants to execute any document, his wife has got right to an extent of Ac.3.51 cents only which is 1/2 of the total extent that too undivided and unspecified. But the sale deed dated 14.07.2011 said to have been executed by the appellant's wife

Smt.Botcha Atchayamma and her two sons is to an extent of Ac.4.69 cents and it is settled law that no one can convey better title than what she had when the wife of appellant has got only half share out of Ac.7.02 cents how the sale deed could be executed by his wife and two sons for an extent of

Ac.4.69 cents and therefore the sale deed is void document and it will not confer any right on the plaintiff and as per the maxim buyer must be ware but taking advantage of fact that there was no subdivision of survey number 60, the plaintiff cannot deny his right and argued that since the appellant is the co-owner, the plaintiff cannot file the suit for permanent injunction against him and he relied on the decision reported in

T.Lakshmipathi and other Vrs. P.Nityananareddy in Civil Appeal

No.4526 of 1999 date of judgment 31.03.2003 and extracted as follows:- "Where any property is held by several co-owners, each co-owner has interest in every inch of common property, but his interest is qualified and limited by similar interest of the other co-owners. One co-owner cannot take exclusive possession of property and the co-owner can also protect his possession against other co-owners only when there is an arrangement 13

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express or implied with other co-owners to possession and enjoy any property exclusively".

14. The learned counsel for the appellant contended by applying legal position in the above decision, the appeal may be allowed as the appellant is co-owner along with his wife.

15. The learned counsel for the respondent No.1 argued that the facts of the said case are not applicable to the facts of the present case as appellant is not a co-owner along with his wife as alleged by him and the registered settlement deed dated 27.11.1974 marked as Ex.B.1 was created by the appellant and if really there is such document, he would have filed the original settlement deed in stead of certified copy of settlement deed. It is true the perusal of the record shows Ex.B.1 is the certified copy of settlement deed dated 27.11.1974 infavour of appellant and his wife

Smt.Botcha Atchayamma.

16. Apart from the said certified copy of settlement deed marked as

Ex.B.1, he filed one land revenue receipt marked as Ex.B.2. The perusal of

Ex.B.2 shows it is land revenue receipt for the year 1991. Except that he did not file any other document to prove his contention that he is the co-owner along with his wife.

17. The learned counsel for the Respondent No.1 contended that even as per the said document he is claiming property from his wife's brothers and it shows that he has no property at all and Ex.B.1 is created. There is some force in the contention of the learned counsel for the respondent No.1 that

Ex.B.1 is not a valid document for not filing the original document and he filed Ex.B.2 only. Because if really there is a document infavour of appellant and his wife, what prevented him to file the original document

before the trail court or at least before the appellate court or to examine any

person to prove its contents.

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18. The perusal of cross examination of evidence of DW.1 shows he has brought the said document 30 years back and he stated that he has not filed any cancellation of registered sale deed. At page No.4 in his cross examination Dw.1 stated that he has not filed any suit for declaration over the plaint schedule property that he has not filed any adangal, pattadar pass book relating to the plaint schedule property that he does not know whether plaintiff has pattadar pass book and title deed and relevant revenue records relating to plaint schedule property. Thus no reasons were explained by the defendant for not filing the original document before the court or at least for not examining any person either scribe or attestor or the Sub Registrar. The defendant is also not entitled for presumption under section 90 of Evidence Act that a person need not prove the execution of 30 years old document. In this case the document has been executed in the year, 1974 but the presumption is not applicable. Surprisingly it is not known what prevented the defendant to file the original document or to explain about the non possessing of the original document. Even it is not his case that the original is lying with his wife.

19. He stated in his cross examination that he does not know whether his wife has got property in the form of Pasupu Kunkuma to an extent of Ac.4.22 cents in survey No.60/21. He does know whether the property in survey No.60/19 an extent of Ac.0-47 cents and survey

No.60/21 an extent of Ac.4.22 cents sold to the plaintiff. He has not filed any police complaint against his wife and children regarding schedule property. The above two items have been shown as items 1 and 2 of the plaint schedule property i.e., Ac 4.22 cents in survey No.60/21 and Ac.0.47 cents in survey No.60/19.

20. The appellant contended that the property of Ac 7.02 cents was shown as item No.4 is covered in survey No.60. As per Ex.B.1 item No.4 of schedule 15

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of that document shows it is situated in Sy.No.60.21 as a single item but not in two items. But the plaint schedule property is situated in two survey numbers with a specific boundaries covered by survey No.60/19 and 60/21 and total extent is Ac. 4.69 cents.

21. The learned counsel for the appellant contended that his wife cannot execute document for more than Ac.3.51 cents as he is having joint half share in the remaining Ac.3.51 cents out of Ac.7.02 cents got by virtue of settlement deed dated 27.11.1974. It is already stated that the original of the document is not filed and no person connected to the document is examined except self serving evidence of DW.1.

22. The learned counsel for the 1st respondent contended that according to section 68 of Evidence Act, since the settlement deed is a compulsory attastable document, he has to examine at least one attestor to prove the document when the execution is denied and in this case plaintiff is completely denying execution of Ex.B.1.

23. Therefore, I hold that the appellant failed to prove execution of

Ex.B.1. Further if really Ex.B.1 is infavour of appellant said to have been executed in the year 1974, what prevented him to produce the original revenue record in between the years 1974 to 1991 either patttadara pass book and title deed or adangal copies or cist receipts. Except Ex.B.2 for the year 1991 he did not choose to file any cist receipt before the court.

24. The learned counsel for the 1st respondent contended that he filed

Ex.A.1 registered sale deed dated 14.07.2011 executed by the wife of

Defendant No.1 and Defendant No.2 and defendant No.3 who are the sons of defendant No.1 and he need not prove execution of sale deed because defendant Nos.2 and 3 categorically admitted the execution of sale deed infavour of plaintiff, but they denied the passing of part of sale consideration and their contention is their mother obtained tractor loan in 16

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the year, 2007 and crop loan in the year 2009 by mortgaging the schedule property as security and availed the loan from Andhra Bank, Lolugu Branch and at the time of sale transaction, the plaintiff agreed to discharge the said loan amount and assured to discharge the loan on the next day of execution of sale deed and at that time the matter was placed before the Vice

Chairman, Zilla parishad, Srikakulam and the son of plaintiff executed

Oppudala Patram to that effect on behalf of the plaintiff and accordingly she deducted the loan amount payable to the bank with interest from out of the sale consideration and paid the balance of sale consideration only to the defendants and their mother and as such the plaintiff did not fulfill her promise and the possession of plaint schedule property was not delivered to the plaintiff/Respondent No.1.

25. As per written statement filed by defendant No.1 he stated that 1st defendant is enjoying the suit schedule property by raising crops like maize, sugar cane and black gram etc., since 1974 onwards. The possession of the suit schedule property was never transferred to the plaintiff and as such the plaintiff was not in possession and enjoyment over the suit schedule property and those documents are created and concocted by colluding with the defendants 2 and 3 as well with the concerned revenue authorities.

26. The trial court did not believe the version of the Defendant No.2 and 3 that the plaintiff paid only part of the sale consideration and thus she deducted Rs.6,50,000/- out of total sale consideration of Rs.14,07,000/- to discharge the loan due to the bank. The said Voppudala patram dated 14.07.2011 is not marked on behalf of the defendants. The plaintiff denied the said Voppudala patram. If really there was any such agreement between the plaintiff and defendants, the defendants would have marked the document and would have examined so called elder but nothing was done till today. The appellant did not file any suit for declaration of title. On 17

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the other hand he did not give any complaint to the police even till today nor filed a suit for cancellation of sale deed marked as Ex.A.1 alleging that

Ex.A.1 is false and fictitious document created by the plaintiff by colluding with his wife and sons.

27. Dw.1 stated in his cross examination that he is living separately from his wife and children since six years . Ex.A.1 document is dated 14.07.2011 and the suit is filed in the year, 2013 for permanent injunction.

28. The learned counsel for the 1st respondent contended that apart from the plaint schedule property, the plaintiff also purchased some other extents of land in survey No.60/21, 60/18 and 60/20 from different Ryoths and the plaintiff approached the revenue authorities to mutate her name in the revenue records and also for issuing pattadar pass book and title deed in her name for the entire extents she purchased. Thereby the revenue authorities after verifying the title and possession issued pattadar pass book and title deed in her name for all the lands purchased by her and her name was also mutated in all the concerned records of the revenue department and they also issued No.3 village adangal account copy and while the matters stood thus when the son of plaintiff engaged labour for ploughing the entire suit schedule land on 25.12.2013, all the defendants came to the suit schedule land and obstructed the ploughmen engaged in the land from doing ploughing and with great difficulty the son of the plaintiff drew away all the defendants from the plaint schedule land and they left by threatening them.

29. He further argued as per section 110 of Evidence Act, when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms he is not the owner and argued that Ex.A.1 is 18

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establishing the plaintiff is the owner of the property and not only that, the

Defendants 2 and 3 admitted execution of sale deed in favour of plaintiff.

30. PW.3 stated in his cross examination by the counsel for Defendants

No.2 and 3 that he is the scribe of the document marked as Ex.A.1. He denied the suggestion that the consideration was passed part by way of cash and part by way of cheque in the transaction related to Ex.A.1. This witness adds that the consideration was passed entirely by way of cash. He further stated he does not know whether anyone has approached him contending that a cheque issued for consideration of Ex.A.1 has been bounced. He does not know whether any loan is pending. He does not know whether the plaint schedule property is still in possession and enjoyment of the vendors of the plaint schedule property. The recitals of Ex.A.1 are clear that the possession has been delivered to the vendee and the consideration was also passed under Ex.A.1. The defendants cannot adduce any oral evidence contrary to the recitals in Ex.A.1 as per section 92 of Indian

Evidence Act or they cannot take old of section 93 of Evidence Act. Further it is not the case of the Defendant Nos.2 and 3 that part of consideration was paid by way of cash and part of consideration was paid by way of cheque. PW.3 is scribe and his evidence is supporting the version of the plaintiff with regard to fact that Ex.A.1 sale deed scribed by PW.3.

31. Coming to the evidence of PW.2, he is the son of the plaintiff, his evidence is supporting the evidence of PW.1 in all aspects. As per the case of the plaintiff, the plaintiff being the lady, she used to reside far away from the suit schedule land and thereby his father during his life time used to look after the family affairs and he lost his father about 5 years back since then as he is the only son to his parents looking after their properties including the plaint schedule property and thus he engaged ploughman

dated 25.12.2013 and defendants came to the suit schedule land and

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obstructed the ploughmen. However, with great difficulty he drew away all the defendants from the plaint schedule land. Nothing material is elicited in the cross examination of PW.2 by the defendants 1 to 3. PW.2 denied that

Atchayamma is not exclusive owner but her husband/D.1 is also having equal right and Ex.A.1 was got executed without proper verification of the owner of the property. He has not filed any police report and copy of the receipt. He is having relatives in Srikakulam and through them he has purchased the schedule property. Himself and his father are the attestors and at that time they requested defendant No.1 who was present there to sign as attestor but he refused. He denied the suggestion that the dispute arose between plaintiff and defendant No.1 relating to plaint schedule property and execution of Ex.A.1 but no document has been filed before the

Court. The document Ex.A.1 was executed in the year 2011 and the suit is filed in the year 2013 and as per the case of the plaintiff, the obstruction is in the year 2013. He denied about Atchayamma the mother of D.2 and D.3 utilized the bank loan in the year 2007 on two or three occasions by mortgaging the plaint schedule property and he also denied that his mother agreed to repay the loan amount and they have kept a part of the consideration of Rs.6,50,000/- with them. As already discussed there is no proof to show that the plaintiff assured to discharge the bank loan and if really she agreed for discharge of the bank loan, there would have been a recital in the sale deed and if really part of the sale consideration has been paid as alleged by the defendants, the document would not have been registered. Further there is no recital as to bank loan of wife of defendant

No.1. PW.1 denied that the plaint schedule property is still in possession of defendant No.1 and also she denied about acceptance letter (Voppudala patram )was executed on 14.07.2011 in the presence of elders agreeing to discharge the loan amounts.

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32. On behalf of the defendants, DW.2 was examined, he stated 1st defendant used to cultivate suit schedule property by raising crops as such he is in possession and enjoyment of the suit schedule property even till today. He has got lands around suit schedule property. In his cross examination he stated that Defendant No.1 is his friend. He does not know the survey number of the plaint schedule property . The 1st defendant is having an extent of Ac 6.50 cents or Ac 7-00 of land. He does not know in which survey number he /Dw.2 is having lands. This witness stated 1st defendant and his wife are living jointly. 1st defendant filed written statement stating that without his knowledge and consent, the plaintiff colluded with Defendant No.2 and 3 and obtained Ex.A.1.

33. Coming to the evidence of DW.1 the 1st defendant stated that he is living separately since six years from his wife and children and DW.2 stated they are living jointly. The evidence of this witness is not helpful because he could not say the details of the property and he does not know how many properties defendant No.1 is having and in which survey number and contradictory to Defendant No.1's case with regard to family.

34. Dw.3 is 3rd defendant in the suit, he stated that 2nd defendant is his elder brother. Para 3 of his affidavit shows himself and his brother 2nd defendant and their mother Atchayamma have executed registered sale deed

dated 14.07.2011 infavour of the plaintiff but the physical possession of the

suit land was not delivered to her since the plaintiff has not paid the entire sale consideration to them. Already it was discussed in the above para. The defendants have not filed any document and they cannot speak anything contrary to the recitals of Ex.A.1 about passing of consideration or delivery of possession and that Voppudala patram dated 14.07.2011 said to have been executed by PW.2 has not been marked on behalf of defendants and so called elders i.e., Vice Chairman, Zilla Parishad, Srikakulam by name 21

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Chowdary Narayanamurthy in whose presence the said Voppudala Patram said to have been executed is also not examined.

35. From the evidence of Dw.3, it is clear that the execution of Ex.A.1 was established and the plaintiff also examined PW.2 the attestor of the sale deed .

36. Coming to the case of the defendants that the possession was not delivered to the plaintiff and they are in possession but the defendants filed only one land revenue receipt marked as Ex.B.2 of the year 1991 but the plaintiff filed Ex.A.2 pattadar passbook, Ex.A.3 title deed and Ex.A4 adangal copy obtained from Meeseva dated 27.12.2013.

37. The learned counsel for the 1st respondent contended that admitted facts need not be proved as per section 58 of Evidence Act. Since Defendant

Nos.2 and 3 admitted the execution of Ex.A.1 sale deed infavour of plaintiff, he need not prove the execution. He further argued that the documentary evidence prevails over the oral evidence and in this case, the 1st respondent filed all the documents to prove her title , possession over the same and Ex.A.1 proves the plaintiff is the owner of the schedule property that as per section 35 of Indian Evidence Act, the entries made by the revenue authorities are deemed to be valid until and unless disproved the same by the defendants by way of rebuttal evidence and in this case the appellant and his sons i.e., respondents 2 and 3 failed to rebut the same by adducing the rebuttal evidence and any fact alleged in the written statement is not sufficient to say that the defendants rebutted.

38. The learned counsel for the plaintiff / 1st respondent further argued that the documentary evidence prevails over the oral evidence. Whereas the 1st respondent filed all documents to prove her right title and possession over the same and as per 35 of the Indian Evidence Act, the entries made 22

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by the Revenue Authorities are all deemed to be valid until unless disproved the same by the defendants by way of rebuttal evidence.

39. In the present case the appellant and his sons Respondents 2 and 3 failed to rebut the same by adducing rebuttal evidence.

40. The learned counsel for the plaintiff / 1st respondent relied on a decision of the Apex Court in Karewwa VS Hussensab Khansaheb

Wajantri and others (Civil Appeal No.2273 of 1994 decided on

01.03.2001) reported in 2001 0 Supreme (SC) 416; 2002 0 AIR (SC)

504; 2002 0 AIR (SCW) 40; 2002 2 AIIMR (SC) 247; 2003 1 ICC 127;

2001 Supp1 JT 611; 2002 1 PLJ 580; 2002 4 RCR (Civ) 350; 2002 9

SCC 315; 2001 1 SCJ 319; 2001 5 SLT 30; 2001 6 Supreme 18202

Wherein it was held that :- “Mere statement of fact in the written statement is not a rebuttal of presumption of correctness of an entry in the revenue record. The respondent was recorded as a tenant in the revenue record in the year 1973 and under law the presumption is that the entry is correct. It was for the appellant to rebut the presumption by leading evidence. The appellant has not led any evidence to show that entry in the revenue record is incorrect".

In this case also the defendants have filed written statement and they denied the possession infavour of plaintiff but they have not adduced any evidence by examining revenue authorities by way of rebuttal evidence to show the entry in the revenue record filed by plaintiff is incorrect.

The learned counsel for the plaintiff / 1st respondent relied on a decision of the Judgment of the Honourable High Court of Andhra

Pradesh in N.S.Srinivas Versus Madduri Mallareddy (decided on

11-25-04) reported in 2004 0 Supreme (AP) 1411; 2005 1 ALD 268;

2005 1 ALT 169; Wherein it was held in para No.29 that :- 23

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“IN Y.Vijayabharathi V. Y.Manikyamma, another learned single judge of this court while considering the evidentiary value of the entries in revenue records held as "under: "8. . . . . Although the entries in the record of Rights register enjoy the presumption in law that the entries are true unless the contrary is proved and may not be discredited, the records of rights are no records of documents of title. such a question has been clearly dealt with by the Honourable Supreme Court in Nagarapalika, Jind V. Jagat singh (AIR 1995 SC 1377) . And following Nirman Singh V. Lal Rudra Pratab (AIR 1926 P.C.100), it has been held that such documents are more in the nature of fiscal inquiries instituted in the interest of the sate for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid. In other words, the records of rights are the documents ensuring the person to be made liable to pay the revenue and for no other purpose. However, it may not be hastened to be decided that such entries have got corroborating value regarding the possession of a party in regard to an immovable property".

In Para No.32 held that "FROM the above, it is clear that the entries in revenue records may be useful to prove the prima facie possession and not conclusive proof with regard to title".

By relying on the said decision, the 1st respondent counsel argued that the entries in revenue records may be useful to prove prima-facie possession and not conclusive proof with regard to title.

The learned counsel for the plaintiff / 1st respondent also relied on a decision of the Judgment of the Honourable High Court of Pubjab &

Hariyana in Parkasho Devi Versus Tarsem Lal reported in 2002 0

Supreme (P & H) 1277;

The facts of the said case are different to the facts of this case.

He argued that theentries in Revenue Records will affirm that the possession of the plaintiffs, more so when the oral evidence did not prove defendant's possession, the plaintiff is entitled for permanent injunction against the defendants.

41. In this case the learned counsel for the 1st respondent/plaintiff contended that in a suit for permanent injunction, it is sufficient if the plaintiff is able to establish that she was in possession of the property as on the date of the suit and the plaintiff / Respondent No.1 has proved by filing

Ex.A.1 registered sale deed and also Ex.A.2, Ex.A.3 and Ex.A.4 documents 24

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issued by revenue authorities that she is the absolute owner of the property and she is in possession of the property and thus it can be said that the plaintiff alone is in possession of the plaint schedule property.

42. Therefore, I accepted the contention of the 1st respondent's counsel that in a case for permanent injunction, the plaintiff has to establish the possession in the plaint schedule property as on the date of the suit and in this case the plaintiff could establish her possession as on the date of suit by filing Ex.A.1 to Ex.A.4, whereas the defendants failed to establish the appellant's/Defendant No.1 possession or possession of Defendant Nos.2 and 3, as on the date of suit. In this appeal Defendant Nos.2 and 3 were shown as Respondent Nos.2 and 3 , they remained exparte in the appeal and they did not contest the appeal and only the plaintiff / Respondent No.1 alone contested the appeal.

43. Therefore, I hold that there is no need to interfere with the findings given by the trial Court and the trial Court appreciated the oral as well as documentary evidence by considering all the issues involved in the suit.

Accordingly, these points are answered in favour of the 1st respondent/

Plaintiff and against the appellant/Defendant No.1.

44. In the result, this appeal is dismissed with costs by confirming the

Judgment and Decree, dated 04.01.2019 passed in O.S.No.209/2013 by the

Principal Junior Civil Judge, Srikakulam.

Dictated to the Stenographer Grade I, transcribed by her corrected

and pronounced by me in Open Court, on this, the 9th day of March, 2022.

I Addl. District Judge, Srikakulam.

Copy to the Principal Junior Civil Judge, Srikakulam.

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IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF CASES

UNDER N.D.P.S. ACT CUM I ADDITIONAL DISTRICT & SESSIONS

COURT, SRIKAKULAM.

Present: Smt.P.Annapurna,

Special Judge for trial of cases under N.D.P.S. Act cum I Addl.

District Judge, Srikakulam.

FRIDAY, THIS THE 25TH DAY OF MARCH, 2022

SESSIONS CASE No.02/2022

(Crime No.93/2021 of Srikakulam I Town Police Station)

Between: State represented by the Inspector of Police, Srikakulam Circle … Complainant

And 1. Gorakala Dhanaraj, S/o late Someswararao, aged 36 years, Vadabalija by caste, Dammala Veedhi, Srikakulam, Srikakulam Town & District, working as Cremator at Rotary Club-Graveyard, Day & Night Junction, Srikakulam.

2. Boga Durgarao @ Durgaprasadarao @ Peddadu, S/o late Ramarao, aged 21 years, Yadava by caste, Gollaveedhi, Hayathingaram, Srikakulam Town, working as Labour.

3. Yelamanchili Koteswararao, S/o Laxmanarao, aged 27 years, Naibrahmin by caste, Z.P. Backside, Compost Colony, Srikakulam Town, Working as Fruit Vendor.

..Accused

Prosecution Sri T.Siva Prasada Rao, Special Public Prosecutor, was Srikakulam. conducted by: Accused were Sri K.Apparao, Legal Aid Counsel for Accused Nos.1 defended by: and 2 and Sri B.Syama Sundara Rao, Advocate for the Accused No.3.

Offence: Under Section 8 (A) 20(b)(ii) (B) of the Narcotic Drugs & Psychotropic Substances Act, 1985. Plea of Pleaded not guilty. accused: Finding of the Found guilty.

Judge:

Sentence or In the result, the accused Nos. 1 to 3 are found Order: guilty for the offence punishable under section 20(b)(ii)(A) read with Section 8(A) of Narcotic Drugs 2 Sessions Case No. 02/2022 I ADJ Court, Srikakulam Dt.25.03.2022 and Psychotropic Substances Act, 1985 and they are convicted for the said offence under section 235 (2) of Cr.P.C.

Accused Nos. 1 to 3 are questioned about the quantum of sentence.

Accused No.3 present. Accused Nos. 1 and 2 were produced before me today and heard on quantum of sentence.

A.1 has stated my grand mother who is very old is depending on me and I have no others except my grandmother and pleaded mercy.

A.2 has stated I have mother only and she is depending on me and pleaded mercy.

A.3 has stated I have mother only and she is old and depending on me and pleaded mercy.

Taking into consideration of the socio, economic conditions of the accused Nos.1 to 3 and their family back ground, I feel that it is a fit case to take a lenient view. In view of bar under Section 33 of the Narcotic Drugs & Psychotropic Substances Act, the accused Nos.1 to 3/convicts are not entitled to the benefit under the provisions of Probation of Offenders Act.

By considering their plea, this court has taken a lenient view and convicted the accused Nos.1 to 3 under section 235(2) of Cr.P.C and sentenced the accused Nos.1 to 3 to undergo Rigorous Imprisonment for a period of six months each and the accused Nos.1 to 3 shall also pay a fine of Rs.5,000-00 (Rupees five thousand only) each, in default of fine amount, they shall undergo simple imprisonment for a period of 2 (two) months each with a benefit of set off under section 428 Cr.P.C for the offence punishable under section 20(b)(ii)(A) read with 8(A) of the Narcotic Drugs & Psychotropic Substances Act, 1985.

The accused Nos.1 and 2 have been in jail from 02.07.2021 to 25.03.2022 and accused No.3 undergone jail from 02.07.2021 to 23.08.2021 which shall be set off under section 428 Cr.P.C.

3 Sessions Case No. 02/2022 I ADJ Court, Srikakulam Dt.25.03.2022

The material object M.O.1 i.e., three sample packets of ganja shall be destroyed after expiry of appeal time. The accused Nos. 1 to 3 are informed about their right of appeal. Office is directed to give free copy to the accused Nos.1 to 3.

This case coming on 21.03.2022 for final hearing before me in the presence of Sri T.Siva Prasada Rao, learned Special Public Prosecutor for the complainant/State and Sri K.Apparao, Legal Aid Counsel for Accused Nos.1 and 2 and Sri B.Syama Sundara Rao, Advocate for the Accused No.3 and the matter having been stood over to this day for consideration, this court delivered the following:

J U D G M E N T

01. The Inspector of Police, Srikakulam Circle filed charge sheet against the accused Nos.1 to 3 for the offence punishable

Under Section 8 (A) 20(b)(ii) (B) of the Narcotic Drugs & Psychotropic

Substances Act, 1985, alleging as under. :-

02. On 02.07.2021 working at about 6-00 am., PW.1-

LW.1/Ambati Vijayakumar the then Sub Inspector of Police,

Srikakulam I Town Police Station received reliable information and sent a requisition to the PW.5-L.W.8 Y.V.Prasada Rao the then

Tahsildar, Srikakulam with a request to attend along with two

VROs at the time of watching to catch suspected persons as he got reliable information about the transportation of ganja. After their arrival, PW.1-LW.1/Ambati Vijayakumar the then Sub Inspector of

Police and his staff LWs 2 to 4 i.e., M.S.S Srinivasa Rao, PW.2-

Lw.3/ Kondala Venkata Ramana and LW.4/Pinninti Ramesh along with PW.5-LW.8 Y.V.Prasadarao the then Tahsildar and VROs i.e.,

LWs 6 to 8 viz., Madugula Priyanka, PW.4-LW.7 Jenni Rohini the then VROs proceeded to Kinnera Theatre junction, Z.P. road, 4 Sessions Case No. 02/2022 I ADJ Court, Srikakulam Dt.25.03.2022

Srikakulam on the Government vehicle bearing No.AP 9 P 6227 and reached at about 07.15 hours, where while observing and watching the suspected persons, at about 07.30 hours, the accused Nos.1 to 3 were coming along Z.P road towards Kinnera Theatre junction by walk having possession of plastic cover bags in their hands, witnessed the police party in uniform, confused and tried to flee from the place, then PW.1-LW.1/Ambati Vijayakumar the then Sub

Inspector of Police, and his staff LWs. 2 to 4 rounded up without escaping from there and on suspicion, PW.1-LW.1/Ambati

Vijayakumar the then Sub Inspector of Police, taken into custody of accused Nos.1 to 3 with the assistance of LWs. 2 to 4, verified the white colour plastic cover bags in their hands, found ganja in three bags. Then PW.1-LW.1/Ambati Vijayakumar the then Sub Inspector of Police informed the accused that as they have in possession of ganja it is an offence and notice was given to them under section 50(1) of Narcotic Drugs & Psychotropic Substances Act, 1985 obtained their consent for search. PW.1-LW.1/Ambati Vijayakumar the then Sub Inspector of Police followed the procedure by introducing himself to the accused about his identity as Sub

Inspector of Police, Srikakulam I town Police station and questioned about their identity and commission of offence. Then the accused/

A.1 to A.3 voluntarily confessed by disclosing their identity and addressed one by one as mentioned. The accused confessed that they have in the habit of consuming alcohol and ganja and they are all friends and used to move together here and there by consuming alcohol and ganja. A.1 confessed that in the recent past many 5 Sessions Case No. 02/2022 I ADJ Court, Srikakulam Dt.25.03.2022 people have died due to Corona Pandemic in Srikakulam, he earned huge money and as usual he went to Aruku area of Visakhapatnam along with A.2 and A.3 and purchased 3 1/2 kgs of ganja from an unknown person at the topes for Rs.22,750/- @ each kg. Rs.6,500/- and brought to Srikakulam for their needs as well as to sell at higher rate to the priests for profit. Some quantity of ganja sold away to the priests at Ponnada bride, Srikakulam now and then and the profits spend away for their needs. He hid the rest of the ganja in his house for their use. But he suspected that if the ganja found in his house, police may search and arrest him, he planned to change the place where the ganja was hidden from his home to a place of work in the cemetery and accordingly he called A.2 and A.3 to his house on 02.07.2021 early morning and shared the remaining ganja in equal in three plastic bags and while going to Day and

Night junction side through Z.P road from his house at Compost

Colony, they were caught by the police. A.1 further confessed about his having rowdy sheet in Srikakulam I town as he involved several criminal cases. A.2 and A.3 also confessed about their mode of living and friendship with A.1 and they used to consume alcohol and ganja together and purchase ganja at Aruku agency area of

Visakhaaptnam for their use as well as sell to the priests for profits.

PW.1-LW.1/Ambati Vijayakumar the then Sub Inspector of

Police after explaining the reasons and giving notice under section 50 of Narcotic Drugs & Psychotropic Substances Act, 1985 to the accused, PW.5-LW.8 Y.V.Prasadarao the then Tahsildar verified the ganja along with PW.1-LW.1/Ambati Vijayakumar the then Sub 6 Sessions Case No. 02/2022 I ADJ Court, Srikakulam Dt.25.03.2022

Inspector of Police, taken into custody of accused and seized contraband ganja. PW.3-LW.5/Mallavarapu Ashok brought by

LW.2/MSS Srinivasa Rao on the instructions given by PW.1-

LW.1/Ambati Vijayakumar the then Sub Inspector of Police, weighed the seized contraband and when it was found weighing about

Kg.2.490 grams with three covers and each cover weighing 830 grams with pack and without pack weighing about 806 grams and total without packing weighing kg.2.418 grams. PW.1-LW.1/Ambati

Vijayakumar the then Sub Inspector of Police collected 24 grams of ganja from each seized contraband plastic polythene bag as samples and affixed slips duly attested by the mediators. Arrested the accused / A.1 to A.3 at 9.30 hours in the presence of VROs and

Tahsildar and all these proceedings were processed under the cover of mediators report, which was concluded at 9.30 hours on 02.07.2021.

PW.1-LW.1/Ambati Vijayakumar the then Sub Inspector of

Police brought the accused and seized contraband ganja to the police station and registered the mediators report as case in Crime

No.93/2021 under section 20(b)(ii) (A) of Narcotic Drugs &

Psychotropic Substances Act, 1985 of Srikakulam I Town Police station and submitted the original FIR together with the mediators report to the Court of Additional Judl. Magistrate of 1st Class,

Srikakulam and copies submitted to all officers concerned.

PW.7-LW.12 Ch.Ambedkar the then Inspector of Police,

Srikakulam Circle took up investigation on 02.07.2021 at 10.30 hours under the provisions of section 53 of Narcotic Drugs & 7 Sessions Case No. 02/2022 I ADJ Court, Srikakulam Dt.25.03.2022

Psychotropic Substances Act, 1985. He again secured the presence of LW.6/Madugula Priyanka and PW.4-LW.7/Jenni Rohini the then

VRO by placing requisition to PW.5-LW.8/Y.V.Prasadarao the then

Tahsildar and in their presence questioned the accused and recorded the confessional statement of the accused on the same day i.e., on 02.07.2021 at 11.00 hours and concluded at 12.00 hours. PW.7-

LW.12 Ch.Ambedkar the then Inspector of Police, Srikakulam Circle also examined the witnesses LWs.1 to 5 viz., Pw.1/Ambati Vijaya

Kumar the then Sub Inspector of Police, M.S.S.Srinivasa Rao, PW.2

Kondala Venkata Ramana the then Constable, Pinninti Ramesh and

PW.3/Mallavarapu Ashok and recorded their statements under section 161(3) of Cr.P.C forwarded the accused to the Court on 02.07.2021 after completion of medical fitness and covid-19 tests. As per the provisions of section 42 of this act, a detailed report was immediately submitted to the Superintendent of Police, Srikakulam about the offence and registration of FIR.

PW.7-LW.12 Ch.Ambedkar the then Inspector of Police,

Srikakulam Circle, sent the sample to the LW.10/ K.Srinivas the then Chemical Examiner, R.E.L. Visakhapatnam through

PW.6-LW.9/A.Govindarao vide receipt C.E No.1488/2021, dated 05.07.2021. LW.10/IK.Srinivas the then Chemical Examiner issued opinion vide C.E No.1488/2021, dated 06.07.2021 that the samples vide S.No.12234 to 12236 are ganja and returned the samples with seal.

PW.7-LW.12 Ch.Ambedkar the then Inspector of Police,

Srikakulam Circle, field a memo before the Court with a request to 8 Sessions Case No. 02/2022 I ADJ Court, Srikakulam Dt.25.03.2022 conduct inventory of seized contraband and issued correctness certificate as well as orders of destroy the same under the provisions of 52 A of Narcotic Drugs & Psychotropic Substances Act, 1985.

Accordingly the Judicial Magistrate of 1st Class, Srikakulam conducted inventory over the seized contraband ganja on 23.11.2021 and issued correctness (inventory) certificate.

LW.11/R.E.Ch.Prasad the then Inspector of Police, Srikakulam II

Town Police Station incharge of Srikakulam circle obtained opinion from Additional Public Prosecutor of 1st Additional District Judge

Court, Srikakulam and according to his opinion section 8 A added to the charge sheet as the accused purchased the ganja from unknown persons at Aruku and transport the said ganja from Aruku to

Srikakulam and sell the some ganja to 3rd parties and seized the property by PW.1 in the presence of PW.5.

In this case accused No.3 was released on bail on 23.08.2021 as per orders of this court dated 18.08.2021 and A.1 and A.2 are still in remand at District Jail, Srikakulam. After completion of investigation filed charge sheet against the accused.

03. This case was taken on file for the offence against the accused punishable Under Section 20(b)(ii)(B) read with 8 (A) of the Narcotic

Drugs & Psychotropic Substances Act, 1985.

04. From the beginning, the accused Nos.1 and 2 have been in jail since 02.07.2021 and they are being tried as under trial prisoners.

and Accused No.3 was released on bail on 23.08.2021. On 9 Sessions Case No. 02/2022 I ADJ Court, Srikakulam Dt.25.03.2022 production of A.1 and A.2 and on appearance of A.3 before this court on 28.02.2022, they all were furnished with the copies of documents relied upon by the prosecution, as required under

Section 207 Cr.P.C.

05. Having heard the learned Special Public Prosecutor and learned Defence counsel and on considering the material on record, charge under Section 20(b)(ii)(B) and section 8 (A) of the Narcotic

Drugs & Psychotropic Substances Act, 1985 is framed against the accused Nos.1 to 3, the said charge was read over and explained to

A.1 and A.2 who are produced and A.3 who was present in Telugu, for which they pleaded not guilty and claimed to be tried.

06. During the course of trial, in order to prove its case, prosecution has examined PWs.1 to 7 and got marked Exs.P.1 to

P.10 and M.O.1. After closure of prosecution side evidence, on production of A.1 and A.2 and on appearance of A.3 were examined under Section.313 (1) (b) of Cr.P.C. by explaining the incriminating evidence against them, to which they denied the same. The plea of the accused were one of total denial, but, they did not choose to adduce any evidence on their behalf.

07. Heard both sides.

08. Now the point that arises for determination is “Whether the prosecution is able to prove the guilt of the accused Nos.1 to 3 for the charge under Section 20(b)(ii)(B) and read with section 8 (A) of the Narcotic Drugs & Psychotropic Substances Act levelled against them, beyond all reasonable doubt”?

10 Sessions Case No. 02/2022 I ADJ Court, Srikakulam Dt.25.03.2022

09. POINT:

The learned Special Public Prosecutor contended that on 02.07.2021 at about 6-00 am., on receipt of information by PW.1 the then Sub Inspector of Police, sent Ex.P.1 requisition to Tahsildar examined as PW.5 with a request to attend along with two VROs to catch suspected persons and as they are involved in transportation of ganja after their arrival PW.1, PW.2, LW.2/M.S.S.Srinivasarao,

LW.4/Pinninti Ramesh, LW.6/ Madugula Priyanka, PW.4 and PW.5 went to Kinnera Theatre junction on government vehicle and while they are observing at about 7.30 am., A.1 to A.3 who were coming along with Z.P road by walk holding plastic covers in their hands and on seeing the police party, they tried to escape then PW.1 and his staff caught hold them and verified bags and found ganja in 3 packets and then notice was issued under section 50(1) of Narcotic

Drugs & Psychotropic Substances Act, 1985 marked as Ex.P.2.

Thus followed procedure and A.1 stated that they are in the habit of consuming alcohol and ganja and A.1 with his close associates i.e.,

A.2 and A.3 brought ganja from Araku purchased 3 1/2 kgs of ganja for Rs.22,750/- and brought to Srikakulam for their needs as well as to sell at higher rates to priests and some quantity was sold away to the priests and then the profits spent away for their needs and A.1 stated he hidden the rest of ganja in his house but suspecting that if ganja was found in their house, police will search and arrest him, he planned to change the place and accordingly he called A.2 and A.3 to his house on 02.07.2021 early morning and shared the remaining ganja in equal in three plastic 11 Sessions Case No. 02/2022 I ADJ Court, Srikakulam Dt.25.03.2022 bags and while going to Day and Night junction side through Z.P road they were caught by police.

10. He further argued that PW.3 was brought by LW.2/M.S.S

Srinivasa Rao the then Constable, he came and weighed ganja in three covers which came to total kgs. 2.490 grams i.e., 830 grams each with covers and after removing the covers the property came to 806 grams each and PW.1 collected 24 grams from each polythine bag as sample and pasted slips attested by the mediators i.e, PW.4 and LW.6/M.Priyanka and they arrested the accused in the presence of VROs and Tahsildar and argued that basing on the mediators report First Information Report was registered marked as

Ex.P.4, basing on Ex.P.3 mediators report Ex.P.4 First Information

Report was registered and that after returning to police station

PW.7 secured the presence of PW.4 and LW.6/M.Priyanka who were deputed by PW.5 Tahsildar and questioned the accused and recorded confessional statement marked as Ex.P.5 and argued that the property marked as M.O.1 was sent to chemical analysis, the chemical analyst issued Ex.P.9 opinion that the samples are ganja and returned samples and thereafter PW.7/investigating officer filed memo to conduct inventory and the Honourable Judicial

Magistrate of 1st Class, Srikakulam issued correctness certificate

marked as Ex.P.8 and then he destroyed the remaining property vide proceedings and destruction certificate marked as Ex.P.10 and argued that PW.5 the then Tahsildar has spoken about the seizure in his presence and PW.4 the then VRO stated she drafted mediators report and argued that the evidence of PW.6 who 12 Sessions Case No. 02/2022 I ADJ Court, Srikakulam Dt.25.03.2022 registered First Information Report and the evidence of PW.7 who received analysis report and filed charge sheet is corroborating with each other and consistent with the evidence of PW.1 to PW.5 and they followed the procedure prescribed under Narcotic Drugs &

Psychotropic Substances Act, 1985 Act and argued that the prosecution brings home the guilt of the accused beyond reasonable doubt.

11. In this case A.1 and A.2 are in jail since the date of arrest and remand and A.3 was released on bail in August, 2021 as A.1 and

A.2 did not engage a counsel, a Legal Aid Counsel by name

Sri K.Apparao has been appointed to the accused A.1 and A.2 to defend and A.3 engaged a counsel by name Sri B.Syamasundararao.

12. The learned counsel for the accused Nos.1 and 2 argued that

Rowdy Sheet was opened against A.1 and A.2 and hence a false case is foisted against A.1 and A.2 for the purpose of statistics and he further contended that there are several contradictions in the evidence of witnesses and argued that PW.3 weighing person stated he does not know the quantity of the ganja separated by the police in three packets and PW.4 stated each packet contained 830 grams of ganja and PW.4 stated she cannot say the exact location where the accused were caught at Kinnera Theatre junction area and she did not put her signature as scribe of the document and Ex.P.5 was drafted by police constable but the signature of said police constable was not there on Ex.P.5 and PW.4 stated she cannot say the exact quantity of ganja seized from each accused and LW.5 is another

VRO is not examined and PW.2 is the Constable who accompanied 13 Sessions Case No. 02/2022 I ADJ Court, Srikakulam Dt.25.03.2022 the Sub Inspector of Police according to prosecution and he stated he put his signature on mediators report marked as Ex.P.3 but in his cross examination he stated there are several shops at Kinnera

Theatre junction, the names of the shops were not mentioned in the mediators report and he admitted that Kinnera Theatre junction is busy locality and there are other cases pending against the accused whereas PW.5 the then Tahsildar stated that mediators report was prepared by the side of the sweet bakery.

13. The learned counsel for the accused No.3 contended that

A.3 is doing fruit business opposite to I Town Police Station as he is causing inconvenience to police and he did not shift the place in spite of their demand , this case was foisted against him and argued that Sub Inspector of Police gave requisition according to Tahsildar but Tahsildar not signed on it and according to Sub Inspector of

Police /PW.1 they were caught at tiffen shop. PW.2 constable could not say name of the shop and PW.4 stated she does not know the quantity seized from each accused and exact location of the Kinnera

Theatre and further PW.4 did not put her signature as scribe. Ex.P.5 was drafted by Police constable to the dictation of PW.1, as per the cross examination of PW.7 but prosecution not examined to show who is the scribe and his signature was also not there as scribe and

PW.5 MRO stated that 22 grams from each packet were separated was taken as sample but as per the case of the prosecution 24 grams from each packet were separated for the purpose of sample and PW.5 did not state that the mediators report was drafted by VRO 14 Sessions Case No. 02/2022 I ADJ Court, Srikakulam Dt.25.03.2022 and there is no designation or seal of Tahsildar either on the report or on the slips pasted on M.O.1.

14. The perusal of the record shows that PW.6 was deputed to handover the sample and Ex.P.7 is a letter of advice. PW.3 is weighing person who weighed the property. Even though he stated in his cross examination that he does not know quantity of ganja separated by police in three bags, it is not a material discrepancy because the weighing person has no duty to observe the proceedings of separating the property for the purpose of sample and his chief examination clearly shows he weighed the same on his machine and it came to 2 kgs 490 grams of ganja, out of which three packets were separated. Therefore there is nothing to discredit his evidence.

15. Coming to the evidence of PW.2, he stated he put his signature on mediators report marked as Ex.P.3. VRO drafted the report. Nothing material is elicited in the cross examination of

PW.2. PW.2 stated in his cross examination that he can not say the name of the shop at which the accused were stopped. When admittedly there are several shops opposite to theatre, it is not a reason to discredit the evidence of PW.2 on the ground that he could not say the name of the shop.

16. Further the accused counsel contended that PW.5 stated in his cross examination that the report was drafted by the side of the sweet bakery and himself and Sub Inspector of Police jointly

dictated the contents. It does not mean that it is false case because

there are several shops opposite to kinnera theatre junction and all the shops are situated side by side admittedly.

15 Sessions Case No. 02/2022 I ADJ Court, Srikakulam Dt.25.03.2022

17. Further the counsel for the accused contended that

PW.5 stated he did not sign on the two requisitions given by Sub

Inspector of Police to show that he received the same. According to prosecution, the Sub Inspector of Police gave Ex.P.1 requisition to

Tahsildar and again Ex.P.6 letter was given by the inspector of police marked as Ex.P.6 for the purpose of investigation to confirm the facts. The case of the prosecution is in order to prove their case they followed the procedure prescribed under Narcotic Drugs and

Psychotropic Substance Act. They issued Ex.P.1 and Ex.P.6 to

Tahsildar, they were not issued by Tahsildar to the police or it is not a case of the Tahsildar that he did not receive either Ex.P.1 or

Ex.P.6. Therefore when witness stated that he received requisition and letter marked as Ex.P.1 and Ex.P.6, there is no meaning in the contention of the accused counsel that there is no signatures of the

Tahsildar on the said documents especially when they bear the date of issuance. Thus I do not find any force in the contention of the accused counsel.

18. The learned counsel for the accused contended that there is no designation or seal of Tahsildar on the slips pasted to the

Maternal Objects. As already stated PW.5 is examined before the court and he was subjected to cross examination by the defence counsel and he admitted that he put his signature on the sample and the report and they do not contain his designation or seal when such is the case, the contention of the accused counsel is not tenable under law that it does not contain seal or designation of

Tahsidar and as such the Material Objects are not valid.

16 Sessions Case No. 02/2022 I ADJ Court, Srikakulam Dt.25.03.2022

19. Coming to PW.4, the contention of the accused counsel is, she did not sign as scribe . PW.4 stated in her chief examination herself and another VRO and two Constables, Sub Inspector of

Police, Tahsildar and Head Constable went to Kinnera Theatre,

Tahsildar opened the covers and found ganja and it was weighed by calling one person, she drafted one document marked as Ex.P.3 and she identified her signature on Ex.P.3. When the scribe was examined who admitted that she drafted the document it cannot be said that Ex.P.3 is in valid for not mentioning the name of the

PW.4/VRO as scribe because it is not a compulsory attestable document as in civil law.

20. The case of the accused counsel is that PW.4 stated in her cross examination by accused No.3 counsel that she cannot say the exact quantity of ganja seized from each accused. The other witnesses were also examined and the weighing person was also examined, hence it is not a discrepancy.

21. Further the counsel for the accsued/A.3 contended that the Constable who is said to have drafted Ex.P.5 did not put his signature on Ex.P.5 and further argued that the confessional statement recorded by the police is hit by section 25 of Evidence Act.

22. The learned counsel for the Special Public Prosecutor opposed the same and argued that after the property is seized and to confirm the facts accused were brought to police station and then confession statement was recorded and therefore it is not the confessional statement i.e., hit by section 25 of Evidence Act. As already stated by PW.1, he received information and issued 17 Sessions Case No. 02/2022 I ADJ Court, Srikakulam Dt.25.03.2022 requisition to Tahsildar and accused confessed there was ganja in the covers and a notice was issued under section 50(1) of Narcotic

Drugs and Psychotropic Substance Act got marked as Ex.P.2 and accused / A.1 stated that he is the watchman in burial ground and during Covid time the death rate increased and he is habituated to continuously burning the bodies and taking the ganja and the alcohol and habituated to luxurious life and earning more money during Covid time and A.1 stated that prior to 15 days of this incident he along with close associates A.2 and A.3 went to Araku and purchased 3 ½ kgs of ganja from an unknown person @

Rs.6500/- per kg. For a total sum of Rs.22,500/- and brought into

Srikakulam and some portion of the ganja was sold to saints and some portion was kept with them for their consumption and after that he thought that the police may suspect him if the property is kept at his house and then he called the accused Nos.2 and 3 and he started on 02.07.2021 and on sharing with two others each got 830 grams each in total 2490 grams and they were stopped by the police at Kinnera Theatre junction while bringing the same. Nothing material is elicited in the cross examination of PW.1. PW.1 stated that Ex.P.3 is the mediators report and he registered Ex.P.4 First

Information Report in crime No.93/2021.

23. The counsel for the accused No.3 contended that PW.1 stated that they caught the accused at Kinnera junction near tiffen shop whereas the Tahsildar stated that the mediators report was drafted at Sweet bakery. This point is already answered and even according to the accused counsel, the junction is busy locality and 18 Sessions Case No. 02/2022 I ADJ Court, Srikakulam Dt.25.03.2022 there are several shops opposite to Kinnera Theatre. So naming the one shop by one witness and another shop is named by another witness is a minor discrepancy but does not amount to shifting the scene of offence because all the shops are situated side by side.

24. The learned counsel for the accused /A.3 further contended that the time is not mentioned in Ex.P.1 requisition when it was issued to Mandal Revenue Officer. It is also not a material discrepancy. Of course in this case there are discrepancies but they are not material discrepancies to doubt the case of the prosecution or to say that the prosecution story is created .

25. Therefore the evidence of PW.7 the investigating officer is clear that he received Laboratory Analysis Report marked as Ex.P.9 and the chemical analyst opined that it is ganja.

26. The learned counsel for the accused contended that

PW.5 stated 22 grams of ganja was lifted as sample whereas as per the case of the prosecution 24 grams of ganja was lifted as sample.

It is also not a major discrepancy to raise any doubt or to discredit the evidence of PW.5 because the incident was happened long back and he might not have stated exact quantity that was lifted for the purpose of sample because sample was only to ascertain whether the property seized is ganja or not. Some property was separated for the purpose of sample and the same was sent to REL,

Visakhapatnam for chemical examination and in this case PW.6 handed over the samples marked as M.O.1 to the chemical analyst,

Visakhapatnam and he opined that it is ganja and report is marked as Ex.P.9 and the remaining property was produced before the 19 Sessions Case No. 02/2022 I ADJ Court, Srikakulam Dt.25.03.2022

Court of Judicial Magistrate of 1st Class and Ex.P.8 is the inventory/ correctness certificate and after receipt of REL report, the remaining property was destroyed and destruction certificate is marked as Ex.P.10.

27. In this case it is specifically mentioned in Ex.P.5 last para in last page that when the property is weighed it came to Kg.2.490 grams and it came to 830 grams when weighed separately the plastic cover in the possession of each accused and without plastic cover it came to 806 grams and 3 sample packets were separated.

Therefore the contention of the prosecution that the property has to be taken in total i.e., Kg.2.490 grams is not tenable in view of the categorical wording in the last page of Ex.P.5 confessional statement marked as Ex.P.5. Further page 2 of Ex.P.5 also shows while they were coming by holding one cover each in their hands, they were apprehended by police.

28. Therefore, I hold that the prosecution was able to establish that 830 grams was seized from the possession of each accused and when they weighed without cover it came to 806 grams from each accused. Therefore each accused were in possession of below 1 kg. It is less than commercial quantity. When the entire quantity is put together it came to Kg 2.490 grams then it becomes greater than small quantity and lesser than commercial quantity. As already stated it is lesser quantity or small quantity, in this case it is proved that 830 grams was seized from the possession of each accused. Though the charge is framed against accused Nos.1 to 3 for the offence under section 20(b)(ii)(B) read with Section 8(A) of 20 Sessions Case No. 02/2022 I ADJ Court, Srikakulam Dt.25.03.2022

Narcotic Drugs and Psychotropic Substances Act, 1985 during the course of evidence, the prosecution was able to establish that a small quantity of ganja has been seized from the possession of each accused. Therefore, now section 20(b)(ii) (A) of Narcotic Drugs &

Psychotropic Substances Act, 1985 gets attracted. Further the trial has been conducted for the charge under section 20(b)(ii)(B) read with Section 8(A) of Narcotic Drugs and Psychotropic Substance Act which is a major charge. The learned Public Prosecutor contended that all the accused knowingly assisted and committed illegal activities for which section 8 (A) of Narcotic Drugs and Psychotropic

Substances Act is attracted. No prejudice would be caused if the accused are convicted for the lesser quantity of ganja for a charge under section 20(b)(ii) (A) read with section 8(A) of Narcotic Drugs &

Psychotropic Substances Act, as it is a lesser or minor charge and they can be convicted for that offence without framing a separate charge under section 20(b)(ii) (A) read with section 8(A) of Narcotic

Drugs & Psychotropic Substances Act, 1985.

29. In this case, almost all the witnesses are official witnesses, they have no need to give a false evidence against accused

Nos.1 to 3 or to falsely implicate the accused Nos.1 to 3 and Ex.P.9

Laboratory Analysis Report proves that the property seized from the accused is ganja. Therefore, the evidence of all the witnesses is establishing that the prosecution followed the procedure prescribed under Narcotic Drugs & Psychotropic Substances Act, 1985 for searching and seizing the property at the time of search and seizure of the property and they followed the procedure.

21 Sessions Case No. 02/2022 I ADJ Court, Srikakulam Dt.25.03.2022

30. In the above said circumstances, the prosecution successfully proved the guilt of the accused Nos.1 to 3 for the offence under section 20(b)(ii)(A) read with section 8(A) of Narcotic

Drugs and Psychotropic Substance Act beyond all reasonable doubt.

Therefore, this court came to conclusion that the accused Nos.1 to 3 are found guilty for the offence punishable under section 20(b)(ii)(A) read with Section 8(A) of Narcotic Drugs and Psychotropic

Substances Act 1985.

31. In the result, the accused Nos. 1 to 3 are found guilty for the offence punishable under section 20(b)(ii)(A) read with Section 8(A) of Narcotic Drugs and Psychotropic Substances Act, 1985 and they are convicted for the said offence under section 235 (2) of

Cr.P.C.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in open court, this the 25th day of March, 2022.

Sd/-Smt.P.Annapurna,

Special Judge for trial of Cases

under Narcotic Drugs and Psychotropic Substances Act-cum- I Addl. District & Sessions Judge, Srikakulam.

Accused Nos. 1 to 3 are questioned about the quantum of sentence.

Accused No.3 present. Accused Nos. 1 and 2 were produced before me today and heard on quantum of sentence.

A.1 has stated my grandmother who is very old is depending on me and I have no others except my grandmother and pleaded mercy.

22 Sessions Case No. 02/2022 I ADJ Court, Srikakulam Dt.25.03.2022

A.2 has stated I have mother only and she is depending on me and pleaded mercy.

A.3 has stated I have mother only and she is old and depending on me and pleaded mercy.

Taking into consideration of the socio, economic conditions of the accused Nos.1 to 3 and their family back ground, I feel that it is a fit case to take a lenient view. In view of bar under Section 33 of the Narcotic Drugs & Psychotropic Substances Act, the accused

Nos.1 to 3/convicts are not entitled to the benefit under the provisions of Probation of Offenders Act.

By considering their plea, this court has taken a lenient view and convicted the accused Nos.1 to 3 under section 235(2) of Cr.P.C and sentenced the accused Nos.1 to 3 to undergo Rigorous

Imprisonment for a period of six months each and the accused

Nos.1 to 3 shall also pay a fine of Rs.5,000-00 (Rupees five thousand only) each, in default of fine amount, they shall undergo simple imprisonment for a period of 2 (two) months each with a benefit of set off under section 428 Cr.P.C for the offence punishable under section 20(b)(ii)(A) read with 8(A) of the Narcotic Drugs &

Psychotropic Substances Act, 1985.

The accused Nos.1 and 2 have been in jail from 02.07.2021 to 25.03.2022 and accused No.3 undergone jail from 02.07.2021 to 23.08.2021 which shall be set off under section 428

Cr.P.C.

The material object M.O.1 i.e., three sample packets of ganja shall be destroyed after expiry of appeal time. The accused 23 Sessions Case No. 02/2022 I ADJ Court, Srikakulam Dt.25.03.2022

Nos. 1 to 3 are informed about their right of appeal. Office is directed to give free copy to the accused Nos.1 to 3.

Sd/-Smt.P.Annapurna,

Special Judge for trial of Cases

under Narcotic Drugs and Psychotropic Substances Act-cum- I Addl. District & Sessions Judge, Srikakulam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence: None

P.W.1 : Ambati Vijaya Kumar the then Station House Officer, Srikakulam I Town Police Station. PW.2 : K.Venkata Ramana the then constable. PW.3 : M.Ashok PW.4 : Jenni Rohini (VRO) PW.5 : Y.V.Prasad Rao (Tahsildar) PW.6 : A.Govinda Rao PW.7 : Ch.Ambedkar (Inspector of Police)

DOCUMENTS MARKED

For Prosecution:

Ex.P.1/ 02.07.2021 Requisition issued to Tahsildar by Sub Inspector of Police. Ex.P.2/ 02.07.2021 Notice under section 50 (1) of Narcotic Drugs & Psychotropic Substances Act, 1985. Ex.P.3/ 02.07.2021 Mediators report dated 02.07.2021. Ex.P.4/ 02.07.2021 First Information Report in crime No.93/2021 of Srikakulam I Town Police Station Ex.P.5/ 02.07.2021 Confession Statement of accused Nos.1 to 3 Ex.P.6/ 02.07.2021 Letter issued by inspector of police to Tahsildar, Srikakulam. Ex.P.7/ 03.07.2021Attested copy of covering letter along with letter of advice. Ex.P.8/23.11.2021 Inventory/correctness certificate Ex.P.9/06.07.2021 Laboratory Analysis Report Ex.P.10 12.02.2022 Certificate of destruction.

FOR DEFENCE: NIL 24 Sessions Case No. 02/2022 I ADJ Court, Srikakulam Dt.25.03.2022

Material objects marked.

M.O.1: 3 (three) sample packets of ganja

Sd/-Smt.P.Annapurna,

Special Judge for trial of Cases

under Narcotic Drugs and Psychotropic Substances Act-cum- I Addl. District & Sessions Judge,

Srikakulam.

// True copy //

Special Judge for trial of Cases

under Narcotic Drugs and Psychotropic Substances Act-cum- I Addl. District & Sessions Judge,

Srikakulam.

25 Sessions Case No. 02/2022 I ADJ Court, Srikakulam Dt.25.03.2022 26 Sessions Case No. 02/2022 I ADJ Court, Srikakulam Dt.25.03.2022 27 Sessions Case No. 02/2022 I ADJ Court, Srikakulam Dt.25.03.2022 kkkkkkkkk

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

N.D.P.S. ACT CUM I ADDITIONAL DISTRICT & SESSIONS COURT,

SRIKAKULAM.

Present: Smt.P.Annapurna,

Special Judge for trial of cases under N.D.P.S. Act cum I Addl. District

Judge, Srikakulam.

MONDAY, THIS THE 28TH DAY OF FEBRUARY, 2022

SESSIONS CASE No.20/2021

(Crime No.287/2019 of Rajam Police Station)

Between: State represented by the Inspector of Police, Rajam police station. … Complainant

And 1.Ithireddy Sairaghava, S/o Umamaheswara Rao, aged 20 years, caste by Kapu, door No.152, Padmavathinagar, Gunapalem, Srikakulam town, Occupation : Student.

2.Mandala Srinu, S/o Laxminarayana, aged 40 years, caste by kapu, Cheruvugattu street, Dolapeta village, Rajam mandal Occupation : Motorcycle Mechanic.

..Accused

Prosecution Sri T.Siva Prasada Rao, Special Public Prosecutor, was Srikakulam. conducted by: Accused was Sri Gorle Ramarao, Advocate for the Accused No.1. defended by: Sri P.Seethannaidu, Advocate for the Accused No.2 Offence: Under Section 20(b)(ii)(B) of the Narcotic Drugs & Psychotropic Substances Act, 1985. Plea of Pleaded not guilty. accused: Finding of the Found not guilty.

Judge:

Sentence or IN THE RESULT, Accused Nos.1 and 2 are Order: found not guilty of the offence Under Section 20(b)(ii) (B) of the Narcotic Drugs & Psychotropic Substances Act, 1985, and that the accused Nos.1 and 2 are acquitted under Sec.235 (1) of the Code of Criminal Procedure, for the said offence. MO.1 sample packet shall be destroyed after appeal time is over. M.O.2 MI Cell phone shall be confiscated to state after appeal time is over. The bail bonds of accused Nos.1 and 2 shall stand cancelled after expiry of Six months as per Sec.437 (A) of Cr.P.C.

2 S.C No.20/2021 dt.28.02.2022 I ADJ Court, Srikakulam.

This case coming on 22.02.2022 for final hearing before me in the presence of Sri T.Siva Prasada Rao, learned Special Public Prosecutor for the complainant/State and Sri Gorle Ramarao, Advocate for the accused No.1, Sri P.Seethannaidu, Advocate for the accused No.2 and the matter having been stood over to this day for consideration, this court delivered the following:

J U D G M E N T

01. The Inspector of Police, Rajam Police Station filed charge sheet against the accused for the offence punishable Under Section 20(b)(i) of the Narcotic Drugs & Psychotropic Substances Act, 1985, alleging as under:-

02. On 09.10.2019 morning PW.6-LW.11/G.Somasekhar,

Inspector of Police got reliable information from his informants about ganja at the house of accused/ A.1 due to that obtained search proceedings from the Sub-Divisional Police Officer, Palakonda vide

C.No.85/Gen/SDO-P/2019 dated 09.10.2019 for conducting search at the place. On that information PW.6-LW.11/G.Somasekhar, Inspector of

Police instructed to Lw.5/P.Sankara Rao the then Constable secured

LWs 3 and 4 viz., Dola Vasudevarao and PW.3/Dola Srinivasa Rao and came to Rajam Police Station when they came to Rajam police Station,

Pw.6-LW.11/G.Somasekhar, Inspector of Police appraised the reliable source of information and requested LWs 3 and 4 viz., Dola

Vasudevarao and PW.3/Dola Srinivasa Rao to act as mediators at the time of arrest of the accused, for which LW.3 and PW.3 gave their consent. Then PW.6-LW.11/G.Somasekhar, Inspector of Police left at the

Rajam Police Station along with LWs 3 to 7 viz., Dola Vasudevarao,

PW.3/Dola Srinivasa Rao, P.Sankararao the then Constable,

PW.4/S.Krishna, the then constable and R.Murali the then Constable at about 10.30 hours by Bolero Vehicle bearing No.AP 18 P 1057 and 3 S.C No.20/2021 dt.28.02.2022 I ADJ Court, Srikakulam.

proceed towards 3rd line Purushottamnagar, Dolapeta village and went to the door No.2-7-4 house which is belongs to Dola Satyanarayana where the accused/A.1 residing along with other students on rental basis, the doors was closed, PW.6-LW.11/G.Somasekhar, Inspector of

Police opened the doors and found two persons in the room and found one red colour bag in their presence with ganja in a polythine cover in the caption of Sri Chaitanya Educational Institution which emanating ganja smell and both the persons trying taking heels on seeing the uniformed police, on that PW.6-LW.11/G.Somasekhar, Inspector of

Police and LWs.5 to 7 viz., P.Sankararao the then Constable,

PW.4/S.Krishna, the then constable and R.Murali the then Constable corned them and questioned about their names and addresses and for escaping by seeking the uniformed police. On that they disclosed their names and addresses.

Then PW.6-LW.11/G.Somasekhar, Inspector of Police along with

LW.3 to LW.7 viz., Dola Vasudevarao, PW.3/Dola Srinivasa Rao,

P.Sankararao the then Constable, PW.4/S.Krishna, the then constable and R.Murali the then Constable and accused left at 3rd line

Purushottamnagar, Dolapeta by bringing seizure of ganja and came to the office of Tahsildar, Rajam mandal and produced the accused and ganja before PW.1-LW.1 /Pappala Venugopala Rao the then Tahsildar,

Rajam and separated the accused and questioned A.1 about the offence, the accused A.1 and A.2 also confessed the offence before the

PW.1-LW.1/Tahsildar and LWs 3 and 4 viz., Dola Vasudevarao and

PW.3/Dola Srinivasa Rao. PW.6 issued a notice to PW.2-LW.2/Peddu

Krishna to attend for weighing the ganja, PW.2-LW.2 weighed the ganja weighing about 1.025 kgs. PW.6-LW.11/G.Somasekhar, Inspector of

Police seized the ganja weighing 1.025 kgs by separating sample from 4 S.C No.20/2021 dt.28.02.2022 I ADJ Court, Srikakulam.

seized ganja and pasted slip containing the signatures of PW.1, LWs 3

Dola Vasudevarao and PW.3-LW.4/Dola Srinivasa Rao and accused, on physical search of accsued/A.1 found one Ml mobile phone in black colour screen with white design, PW.6-LW.11/G.Somasekhar, Inspector of Police also seized the mobile of accused /A.1 under cover of mediators report drafted from 13.00 hours to 14.30 hours. The seized ganja worth roughly Rs.5,000/-.

Basing on the mediators report, PW.6-LW.11/G.Somasekhar,

Inspector of Police registered a case in Crime No.287/2019 under section 20(b)(i) of Narcotic Drugs & Psychotropic Substances Act, 1985 of Rajam Police Station on 09.10.2020 at 15.00 hours, submitted the original First Information Report along with mediators report to the

Judicial Magistrate of Ist Class, Rajam and other copies submitted to the

concerned. During the course of investigation, PW.6-

LW.11/G.Somasekhar, Inspector of Police sent the accused for judicial remand. Further Narcotic Drugs & Psychotropic Substances Act, 1985 forwarded samples of ganja to LW.10 G.Sreenivas, the then

Government Chemical Examiner through PW.5-LW.8/R.Nageswararao the then Constable for chemical examination. LW.10 G.Sreenivas, the then Government Chemical Examiner conducted analysis test and issued his report vide CE No.2590/2019 and samples at S.No.18454 are ganja.

PW.6-LW.11/G.Somasekhar, Inspector of Police got returned sample from LW.10/Sreenivas. Then he filed charge sheet.

03. This case was taken on file for the offence against the accused

Nos.1 and 2 punishable under section 20(b)(ii)(B) of the Narcotic Drugs & Psychotropic Substances Act, 1985.

5 S.C No.20/2021 dt.28.02.2022 I ADJ Court, Srikakulam.

04. On appearance of the accused Nos.1 and 2 before this court, they were furnished with the copies relied upon by the prosecution, as required under Sec.207 Cr.P.C.,

05. Having heard the learned Special Public Prosecutor and learned

Defence counsel and on considering the material on record, charge

Under Section 20(b)(ii)(B) of the Narcotic Drugs & Psychotropic

Substances Act, 1985, the said charge was read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried.

06. During the course of trial, in order to prove its case, prosecution has examined PWs.1 to 7 and got marked Exs.P.1 to P.6 and MO.1 and

M.O.2. After closure of prosecution side evidence, the accused were examined under Section.313 (1) (b) of Cr.P.C. by explaining the incriminating evidence against them, to which they denied the same.

The plea of the accused were one of total denial, but, they did not choose to adduce any evidence on their behalf.

07. Heard both sides.

08. Now the point that arises for determination is “Whether the prosecution is able to prove the guilt of the accused for the charge levelled against the accused Nos.1 and 2, beyond all reasonable doubt”?

09. POINT:

The learned counsel for the Special Public Prosecutor contended that on 09.10.2019, PW.6 received information with regard to possession of ganja by accused Nos.1 and 2, then he secured mediators i.e., PW.3 and LW.3/Dola Vasudeva Rao and went to 6 S.C No.20/2021 dt.28.02.2022 I ADJ Court, Srikakulam.

Purushottapuram colony, 3rd lane, Dolapeta to a two storied building, they found in the 1st floor in a room, the accused tried to escape, they found one red colour bag with them, he questioned them about the bag and the bag was in open position and they found some dried leaves packet and they disclosed that the said cover contained ganja.

Then PW.6 informed selling ganja is an offence and got drafted Ex.P.2 mediators report and both the accused confessed that they are using the ganja for own purpose and also for selling. Then after mediators report, the Circle Inspector, Rajam, two mediators, two constables took the accused to the office of PW.1/Tahsildar who is Gazetted Officer.

PW.1 deposed that as per the procedure, he seized the ganja from accused in the presence of Circle Inspector and other police and for which PW.3 and LW.3/Dola Vasudevarao acted as mediators and PW.1 questioned A.1 and A.2 separately and A.1 disclosed he used to purchase ganja and he will also secure from Chaparai and sell the property for the purpose of his expenses and seized property in this case was purchased at Chaparai on 05.10.2019 and kept it in his room for selling to A.2 and Circle Inspector caught hold them on 09.10.2019 and then PW.2 weighed property on electronic machine, it came to Kg 1.25 grams, then the same was kept in a cover and pasted a slip on the cover and they also seized M.O.2 cell phone under the cover of mediators report marked as Ex.P.1 and argued that PW.2 is the person who weighed ganja on computer machine and PW.3 is the mediator and his evidence is corroborating with the evidence of PW.1 and PW.6 with regard to the seizure of the property and taking samples in the presence of mediators and arrest of the accused. PW.5 is the person who was deputed to handover the sample to Forensic Science Laboratory and his evidence is establishing that after the seizure and after lifting 7 S.C No.20/2021 dt.28.02.2022 I ADJ Court, Srikakulam.

sample the same was sent to Forensic Science Laboratory to know whether the said property is ganja or not and it is corroborating with the evidence of investigating officers i.e., PW.6 and PW.7. PW.7 received

Forensic Science Laboratory Report and filed charge sheet and PW.4 is the constable who accompanied the Circle Inspector and present through out the proceedings and his evidence is also corroborating with the evidence of PW.6 and argued that PW.6 is the investigating officer who received information and argued that he investigated into the case and registered First Information Report basing on Ex.P.1 mediators report as a case in Crime No.287/2019 of Rajam Police Station and argued that the evidence of PW.1 to PW.7 is establishing that the accused Nos.1 and 2 have committed the offence under section

Narcotic Drugs and Psychotropic Substance Act and they both are liable to be convicted under section 20(b)(ii)(B) of the Narcotic Drugs and

Psychotropic Substance Act and argued that the prosecution brings home the guilt of the accused beyond all reasonable doubt.

10. In this case, two counsels appeared for accused and defended the accused Nos.1 and 2 separately but the defence is almost the same and the counsel for the accused argued that according to prosecution, PW.6 is the complainant and he investigated into the case and PW.6 cannot investigate into the case being complainant and argued that as he is interested person, it is fatal to the case of the prosecution and argued that PW.6 prepared entire record and subsequently obtained signatures of PW.1 Gazetted Officer and PW.3 who is said to be the mediator and argued that there are several discrepancies in the evidence of witnesses and argued section 50 of

Narcotic Drugs and Psychotropic Substance Act is applicable only in case of search on a person but in this case the prosecution alleged that 8 S.C No.20/2021 dt.28.02.2022 I ADJ Court, Srikakulam.

they found a bag with the accused and they searched the bag in which the ganja was found and so there is no necessity to take the accused to

PW.1/Tahsildar or any Gazetted Officer and argued that coming to the seizure of property, there is no consistency between the evidence of witnesses and also with regard to apprehension of accused also there are several discrepancies and argued that a false case is foisted.

11. The first contention raised by the counsel for the accused is,

PW.6 admitted that he is the complainant and he deposed before the

Court that on 09.10.2019 he received information about selling ganja and informed the same to his superior officers and secured staff along with the mediators and visited the place and got prepared Ex.P.2 mediators report and he took the photographs and took the accused and produced before the Mandal Revenue Officer before whom Ex.P.1 was drafted and the sample was seized on which they pasted slips according to prosecution. So as everything was done by him (Pw.6) he cannot be the Investigation Officer.

12. The leaned Special Public Prosecutor contended that basing on the mediators report marked as Ex.P.1, Ex.P.4 First Information

Report has been registered in Crime No.287/2019 of Rajam Police and therefore the contention raised by the defence counsel is not correct.

He relied on the decision of Hon’ble Apex Court in the case of RAJESH

DHIMAN VRS. STATE OF HIMACHAL PRADESH reported in 2021 (1)

ALD (Crl.) 613 (SC). Wherein it was held that :- "No sweeping presumption being permissible in this regard, no adverse inference can be drawn against PW.8 himself investigating his complaint. More so when alternate version is not established and unless the accused demonstrate that there has either been actual bias or there is real likelihood of bias." 9 S.C No.20/2021 dt.28.02.2022 I ADJ Court, Srikakulam.

13. The prosecution on one hand contended that PW.6 is not the complainant and argued basing on mediators report marked as

Ex.P.1, only Ex.P.4 First Information Report has been registered though he is the complainant.

14. The perusal of cross examination of PW.6 shows at page 4 he stated he is the eyewitness to the proceedings, he has not given the copy of First Information Report to the complainant after registering the

First Information Report as there is no separate complainant. Because the mediators are the complainant according to him and that in column

No.16 of Ex.P.4 First Information Report shows the name of the complainant as mine i.e., PW.6. Perusal of First Information Report column 14 shows his signature. It is true the complaint was registered by him as per column No.13 of Ex.P.4 First Information report. Most of the investigation was completed by him in this case, except receipt of

Forensic Science Laboratory Report . He denied that since the accused were under their control from the time of Ex.P.2, the confession given by the accused before the Mandal Revenue Officer under the cover of

Ex.P.1 mediators report is in their presence. So admittedly after Ex.P.2 report, the accused were under the control of police. The learned counsel for the accused contends that when the search is of a person there is no necessity to take the accused to Mandal Revenue Officer but these persons were produced before the Mandal Revenue Officer by

PW.6 even though the case of the prosecution is they caused the search of a bag. But the prosecution contends that the accused cannot contend about compliance of section 50 of Narcotic Drugs and

Psychotropic Substance Act in this case. He relied on the decision of Hon’ble High Court of Andhra Pradesh at Amaravathi in the case of 10 S.C No.20/2021 dt.28.02.2022 I ADJ Court, Srikakulam.

KUNCHALA ANKAMMA VRS. STATE OF ANDHRA PRADESH reported in 2021 (1) ALD (Crl.) 58 (AP). Which will be discussed latter regarding the issue whether the complainant is the investigating officer and whether there is any bias is to be examined.

15. The perusal of cross examination of PW.6 shows that he actively participated in the proceedings because according to him he received information and he secured the mediators and he visited the place and he found ganja and then produced before Mandal Revenue officer where Ex.P.1 report was drafted in the presence of Mandal

Revenue Officer and mediators. It shows that he participated from the beginning and when it is the case of the counsel for the accused that the police prepared papers and obtained signatures of Mandal Revenue

Officer and mediators subsequently and some material discrepancies were also found in the evidence of witnesses with regard to the property and other material aspects, it is not safe to rely on the evidence of PW.6 or it cannot be said that the prosecution convinced the court that PW.6 had acted independently.

16. Further the perusal of cross examination of PW.7 shows it is mentioned in his charge sheet that PW.6 obtained search proceedings form SDPO, Palakonda on 09.10.2019 vide C.No.85/GEN-SDPO but

PW.6 kept silent about the same. On the other hand the chief examination of PW.6 shows on 09.10.2019 he received information about selling ganja, he informed the same to his superior officers and obtained permission and he secured his staff along with mediators. So here PW.6 did not disclose whether he obtained search proceedings from SDPO.

11 S.C No.20/2021 dt.28.02.2022 I ADJ Court, Srikakulam.

17. The prosecution did not choose to file search proceedings

before the court and they did not try to get it marked through the

investigating officers either PW.6 or PW.7.

18. Now coming to section 50 of Narcotic Drugs and

Psychotropic Substance Act, it is vehemently contended by the counsel

for the accused that in this case section 50 of Narcotic Drugs and

Psychotropic Substance Act would not be applicable because according to prosecution they seized the property from the bag in the possession of accused and section 50 of Narcotic Drugs and Psychotropic

Substances Act would be applicable only in a case of personal search of the accused and not when it is made in respect of some baggage like a bag, article, vehicle etc., as held in (2005) (4) SCC 350. He has not given the citation but the learned Special Public Prosecutor has relied on the same aspect on the decision reported in Hon’ble Apex Court in the case of RAJESH DHIMAN VRS. STATE OF HIMACHAL PRADESH reported in 2021 (1) ALD (Crl.) 613 (SC), wherein at page 615 the said citation i.e., 2005(4) SCC 350 was referred.

19.It is held that section 50 of Narcotic Drugs and Psychotropic

Substance Act is not applicable when Narcotic drugs discovered from backpack being carried by the accused as held in (2005) 4 SCC 350 "safeguards for search of a person would not extend to his bag or other article being carried by him".

20. Though the prosecution has relied on this citation, their case is PW.6 produced the accused before the Mandal Revenue Officer.

21. The learned counsel for the accused contended there is no necessity for the police to produce the accused before the Mandal

Revenue officer, as in this case, the property was alleged to have been found in a bag of accused.

12 S.C No.20/2021 dt.28.02.2022 I ADJ Court, Srikakulam.

22. The counsel for the accused relied on a citation reported in Hon’ble Apex Court in the case of State of Rajsthan Vs

Parmanand and another in Criminal Appeal No.78 of 2005

delivered on 28.02.2014 wherein it was observed that:- " when there is personal search the investigation officer has to comply section 50(1) of Narcotic Drugs and Psychotropic Substance Act which is mandatory on him. In the present case the I.O/P.W.6 did not follow the procedure adopted under the above said section".

23. It is mentioned in mediators report marked as Ex.P.1 that a personal search was made by the police and that cell phone has been seized from the possession of A.1 according to the case of prosecution.

In this case the perusal of mediators report shows MI cell phone (M.O.2) has been seized from the possession of A.1. So apart from the property of ganja they seized the cell phone.

24. The learned counsel for the accused contended that in case of personal search, the special procedure has to be adopted as prescribed under section 50 of Narcotic Drugs and Psychotropic

Substance Act but that was not done. Further coming to the evidence of witnesses and they stated ganja and cell phone were seized. The perusal of record shows the police searched the accused and seized cell phone from A.1. So it comes under personal search with regard to cell phone. But in this case the prosecution has not followed the conditions under which a search of persons shall be conducted in the prescribed manner detailed in section 50 of Narcotic Drugs and Psychotropic

Substance Act.

" The settled position of law is that the person to be searched under Narcotic Drugs and Psychotropic Substance Act, 1985 is required to be told about his right under section 50 before he is searched and that is a mandatory requirement. No presumption to that effect can be raised".

13 S.C No.20/2021 dt.28.02.2022 I ADJ Court, Srikakulam.

25. Admittedly notice or acknowledgement copy which is required to be given under section 50 of NDPS Act has not been filed with regard to his right of option before whom he shall be produced for search.

26. The learned Special Public Prosecutor relied on this decision also for the point that non-examination of independent witnesses would not ipso facto entitle the accused to seek acquittal. The said ratio is not applicable to the facts of the present case, because the prosecution examined PW.1 and PW.3 who are stated to be the independent witnesses. The learned Special Public Prosecutor further contended that

PW.1 and PW.3 are independent witnesses and they have no need to give a false evidence against the accused and no motive is suggested to them by the counsel for the accused.

27. The evidence of PW.5 is only shows he was deputed by DSP to handover the property to Forensic Science Laboratory and accordingly handed over the same.

28. The learned Special Pubic Prosecutor contended that the property was weighed by PW.2 which came to Kg. 1.25 grams on electric machine.

29. PW.2 stated Rajam police called him on 09.10.2019 and he weighed the ganja on computer weighing machine. The weight came to

Kg. 1.25 grams. PW.1 stated some portion of the property was separated for sending to lab. The remaining portion of the property was covered and kept in a cover and pasted a slip on the cover, himself, CI, Mediators and both accused signed on the slips. Witness identified his signature on the slip. M.O 1 is a sample packet. MI phone was also seized from A.1. M.O.2 is MI cell phone.

14 S.C No.20/2021 dt.28.02.2022 I ADJ Court, Srikakulam.

30. The learned counsel for the accused contended that the prosecution planted the property and that’s why it is admitted by PW.1 in his cross examination that there is no signature of him on sample polythine cover and that it is not mentioned in Ex.P.1 that they used any box for keeping the sample cover and obtained their signatures on the box by pasting slips. It is mentioned in Ex.P.1 that there is seal on sample polythine cover and on perusal of cover, witness stated there is no seal or signatures on sample polytine cover. In Narcotic Drugs and

Psychotropic Substance Act cases, seizure of the property plays an important role. But here according to prosecution they seized one polythine cover and pasted slips by obtaining signatures of the witnesses. But in the court they stated they identified the signatures on the slip pasted to the box. The prosecution could not explain how it was happened and Ex.P.1 shows there is seal on sample polythine cover but there is no seal or signatures on sample polythine cover when it was shown to PW.1, when he was cross examined. Therefore, the prosecution failed to establish that the property which was seized on the date of incident was the same property that was produced and not only

PW.1 but the other witnesses also stated differently contrary to the case of prosecution.

31. With regard to the property, on examination of evidence of

PW.3 the mediator, he stated on 09.10.2019 at 11 am., Ex.P.2 mediators report was prepared, himself and his brother and two persons and police were taken to Mandal Revenue Office, Rajam where the property was got weighed, out of which sample was lifted, another report was drafted at the MRO Office to the dictation of Mandal

Revenue Officer. This witness stated in his cross examination at page 3 that after the property was weighed, himself and his brother (who stood 15 S.C No.20/2021 dt.28.02.2022 I ADJ Court, Srikakulam.

as another mediator) i.e., they both and the accused were asked to wait outside and they waited for half an hour. Thereafter himself,

Vasudevarao and both accused were called to put their signatures on reports. So according to this witness, the mediators report was not prepared in the presence of witnesses and accused and according to him, thereafter they were called to put their signatures on reports.

Further sample was lifted from the property. He cannot say to which village A.1 belongs to, or the sur name or his father’s name. On seeing the sample packet, the witness stated there is no seal and his signatures on identification slips. The case of the prosecution is that the signatures of this witness was obtained on the sample packet. But there was no signature of this witness and there was no seal on the sample packet. Therefore the prosecution failed to remove the suspicion with regard to the property and it creates a doubt in the case of the prosecution.

32. PW.4 stated that he accompanied the Circle Inspector of police on 09.10.2019 and this witness stated the occurrence report was drafted by ASI . He did not sign on the occurrence report. The mediators, CI and both the accused singed on the-occurrence report.

From there they all went to MRO office and weighing person was called and after the property was weighed, it came to kg.1-25 grams, out of which 25 grams were lifted for sample. There a report was prepared by

ASI to the dictation of MRO. He did not sign on the report. The evidence of this witness cannot be taken into consideration because he did not sign on the reports. That Ex.P.1 or Ex.P.2 are said to have been drafted by ASI and they did not choose to examine ASI Bhaskara Rao who is said to have scribed the reports and no reasons were given for 16 S.C No.20/2021 dt.28.02.2022 I ADJ Court, Srikakulam.

non examination of the said witness. If really PW.4 participated in the raid, he would have signed on the reports.

33. The learned counsel for the accused contended that there are several discrepancies in the evidence of the witnesses and it proves no search was happened and no samples were lifted and they relied on the evidence of witnesses, first is PW.1 stated that it was not mentioned in mediators report that A.1 purchased at Chaparai on 05.10.2019. Witness adds that it is mentioned as Saturday but it is not mentioned in Ex.P.1 the day of 09.10.2019.

34. PW.3 stated he cannot say the door number of the house of

Dola Satyanarayana. The house of Dola Satyanarayana consists of 6 portions all together. Some portions are family portions and there are also students in some portions. There are residential houses adjoining the house of Dola Satyanarayana. His house is abutted by road to the house of Satyanarayana and there are two houses. The house of

LW.3/Vasudevarao is situated at a distance of 100 meters to his house.

One constable called him stating that C.I was present on the road.

LW.3 Vasudeva rao is working as Teacher in Government school and police called the tenants in other portions of the said house and also the persons in the neigbouring houses, they all came to the scene of offence. This evidence is contradictory to the evidence of PW.6.

35. On perusal of cross examination of PW.6, he stated that there are residential houses near the surroundings in the scene of offence and also inmates in the 1st floor of the said house. He tried to call the locality persons. He did not mention their names who refused to come.Whereas according to PW.3, the neighbours also present at the scene of offence. According to PW.6 they refused to come and PW.6 stated there is no other way to accused to escape whereas it is 17 S.C No.20/2021 dt.28.02.2022 I ADJ Court, Srikakulam.

mentioned in Ex.P.2 that on seeing the police in uniform they tried to escape. Further PW.6 stated he seized red bag also. But the same was not produced before the court and according to PW.6 all the rooms were meant for students and not given for family partitions, which is contrary to the evidence of PW.3. Further PW.6 stated that their informers have shown house of the accused. The mediators PW.3 and

LW.3/Vasudeva Rao came to police station and he secured them, they all went on jeep to the scene of offence. Whereas PW.3 in his cross examinationstatedthat it is mentioned in mediators report that Circle

Inspector has pushed the door but that is not correct. But after knocking the door by C.I A.1 came out is correct as stated by him in chief examination. Circle Inspector, both accused and police went on their jeep to MRO Office and himself, Vasudevarao reached the MRO office on their vehicle and another contradiction is according to PW.6 this witness came to police station, the mediators were secured at police station. PW.3 stated in his cross examination that one constable called him stating that Circle Inspector is present on the road. He has shown house of Satyanarayana from a distance of 15 meters where A.1 is residing. So according to PW.3, he has shown the house and he was picked up from the house but according to PW.6, PW.3 was secured at police station and his informers have shown the house of accused. As already stated bag was not seized though it is mentioned in mediators report.

36. It is admitted fact that there is one door but the charge sheet shows they tried to escape from back door on seeing the police.

18 S.C No.20/2021 dt.28.02.2022 I ADJ Court, Srikakulam.

37. The counsel for the accused relied on a citation reported in

Hon’ble Apex Court in the case of Mohan Lal Vrs. State of Punjab in

Criminal Appeal No.1880 of 2011 delivered on 16.08.2018

wherein it was observed in para No.23 of its judgment by

reiterating earlier judgment of the Hon'ble Apex Court in the

case of Naushad Vs State of Kerala reported in 2000 (1) KLT 785,

relating to the NDPS Act held that:- "In a case of this nature, when the complainants himself is a police official , the investigation should have been conducted by his top ranking officer and the final report also ought to have been filed by the higher official. A complainant being a police officer cannot be an investigating Officer. For, in such case, the accused and the prosecution will be deprived of their valuable rights of contradicting and corroborating, the previous information recorded under sections 154 or 155 of Cr.P.C and previous statement of the witness, being a police officer, complaint recorded, under section 161 Cr.P.C. enjoined in S.145 and 157of the Indian Evidence Act and proviso of Section 162 Cr.P.C. In the instant case, before me, PW.1 is an Assistant Sub Inspector of Police, and I understand from the Public Prosecutor as well as from the Counsel for the petitioner that the particular police station has got a Sub Inspector of Police. Therefore, in this case, the investigation ought to have been conducted by the Sub Inspector of Police or any other police officer above the rank of PW.1. In the instant case, thus an incurable infirmity and flaw have been committed by the prosecution, quite against the proposition of law. Therefore, on that score itself, the petitioner is entitled to get an order of acquittal. In view of my above conclusion on the footing of position of law, this is a fit case, which has to be allowed by acquitting the petitioner".

38. For the same observation, he also filed certified copy of order in Crl.M.P 240/2021 dated 02.07.2021 on the file of Judge,

Family Court-cum-III Additional District Judge, Srikakulam observing while dismissing the bail application referred and held that the judgment of the Hon'ble Apex Court in Mohanlal Vrs. State of Punjab will not be applicable as the investigation is handed over to another officer after First Information Report was registered by Sub Inspector of Police and hence complainant and investigation officer are not one and the same. The learned counsel for the accused argued that in the present 19 S.C No.20/2021 dt.28.02.2022 I ADJ Court, Srikakulam.

case PW.6 played all role including registration of FIR and entire investigation was done by him. With regard to the evidence of PW.6 and his investigation, it was discussed in detail.

39. The case of the prosecution is the accused possessed ganja and hence the accused No.1 and 2 were arrested and they explained the accused Nos. 1 and 2 about the offence and the charge framed against the accused was under section 20(b)(ii)(B) of Narcotic Drugs and Psychotropic Substance Act, which shows that the accused were punishable for more than small quantity and less than commercial quantity and accused involved in possessing small quantity.

40. In view of the several discrepancies on material aspects observed in the above paras and also failure of prosecution to remove the suspicion with regard to the seizure of the property and failure to follow the procedure at the time of search of a person under section 50 of

Narcotic Drugs and Psychotropic Substance Act and also there is no consistency between the evidence of witnesses as discussed above and all the above discrepancies and non corroboration between the evidence of witnesses with regard to material points including scene of offence and property, I hold that it creates a suspicion in the case of prosecution and the prosecution failed to establish the guilt of the accused Nos.1 and 2 beyond reasonable doubt.

41. In view of the above discussion, it cannot be said that the accused Nos.1 and 2 committed the offence charged against them and in this case no corroboration between the witnesses and there is no consistency between them and the prosecution failed to establish the charge against the accused Nos.1 and 2 beyond all reasonable doubt.

Therefore, I found that the accused Nos.1 and 2 are found not guilty of 20 S.C No.20/2021 dt.28.02.2022 I ADJ Court, Srikakulam.

the offence and entitled for acquittal. Accordingly, this point is answered.

42. IN THE RESULT, Accused Nos.1 and 2 are found not guilty of the offence Under Section 20(b)(ii) (B) of the Narcotic Drugs & Psychotropic Substances Act, 1985, and that the accused Nos.1 and 2 are acquitted under Sec.235 (1) of the Code of Criminal Procedure, for the said offence. MO.1 sample packet shall be destroyed after appeal time is over. M.O.2 MI Cell phone shall be confiscated to state after appeal time is over.

The bail bonds of accused Nos.1 and 2 shall stand cancelled after expiry of Six months as per Sec.437 (A) of Cr.P.C.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in open court, this the 28th day of February, 2022.

Special Judge for trial of Cases

under Narcotic Drugs and Psychotropic Substances Act-cum- I Addl. District & Sessions Judge, Srikakulam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence: NONE

P.W.1 : P.Venugopala Rao, Tahsildar Rajam. PW.2 : Peddu Krishna PW.3 : Dola Srinivasa Rao PW.4 : S.Krishna, Police Constable PW.5 : R.Nageswara Rao, Police Constable PW.6 : G.Somasekhar, Inspector of Police. PW.7 : P.Srinivasa Rao, Sub Inspector of Police 21 S.C No.20/2021 dt.28.02.2022 I ADJ Court, Srikakulam.

DOCUMENTS MARKED

For Prosecution:

Ex.P.1/ 09.10.2019 Mediators report at 1 pm., Ex.P.2/ 09.10.2019 Mediators report at 11 am., Ex.P.3/ - One photograph with corresponding C.D Ex.P.4/ 09.10.2019 First information report in Crime No.287/2019 of Rajam Police Station,. Ex.P.5/ 23.01.2021 Correctness Certificate Ex.P.6/ 11.11.2019 Regional Forensic Science Laboratory Report

FOR DEFENCE: NIL

Material objects marked.

M.O.1: Sample packet of ganja.

M.O.2: MI Cell Phone.

Special Judge for trial of Cases

under Narcotic Drugs and Psychotropic Substances Act-cum- I Addl. District & Sessions Judge,

Srikakulam.

22 S.C No.20/2021 dt.28.02.2022 I ADJ Court, Srikakulam. 23 S.C No.20/2021 dt.28.02.2022 I ADJ Court, Srikakulam. 24 S.C No.20/2021 dt.28.02.2022 I ADJ Court, Srikakulam.

IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF CASES

UNDER N.D.P.S. ACT CUM I ADDITIONAL DISTRICT & SESSIONS

COURT, SRIKAKULAM.

Present: Smt.P.Annapurna,

Special Judge for trial of cases under N.D.P.S. Act cum I Addl.

District Judge, Srikakulam.

FRIDAY, THIS THE 4TH DAY OF FEBRUARY, 2022

SESSIONS CASE No.26/2021

(Crime No.149/2019 of Palasa G.R.P Station)

Between: State represented by the Sub-Inspector of Police, Palasa G.R.P Station. … Complainant

And Rajendra Singh, S/o late Chandrapaul, aged 38 years, Rajput/C, Occupation: Labor, R/o Aroli village, Etah District, Uttar Pradesh State.

..Accused

Prosecution Sri T.Siva Prasada Rao, Special Public Prosecutor, was Srikakulam. conducted by: Accused was Sri P.S Gandhi, Advocate for the Accused. defended by: Offence: Under Section 8 (c) 20(b)(ii) (B) of the Narcotic Drugs & Psychotropic Substances Act, 1985. Plea of Pleaded not guilty. accused: Finding of Found guilty. the Judge: Sentence or In the result, the accused is found guilty for Order: the offence punishable under section 8(c) 20(b)(ii)(B) of the Narcotic Drugs & Psychotropic Substances Act, 1985 and he is convicted for the said offence under section 235 (2) of Cr.P.C.

Accused is questioned about the quantum of sentence tobe imposed against him.

The accused produced before me today and heard on quantum of sentence. The accused has stated he is handicapped and he is having three small kids and his wife and children are taking shelter at his in-laws house due to his detention in jail and that he lost his parents long back and except himself, nobody to look after his wife and children and pleaded mercy. Taking into consideration of the 2 Sessions Case No. 26/2021 I ADJ Court, Srikakulam Dt.04.02.2022 socio, economic conditions of the accused and his family back ground, I feel that it is a fit case to take a lenient view. In view of bar under Section 33 of the Narcotic Drugs & Psychotropic Substances Act, the accused/convict is not entitled to the benefit under the provisions of Probation of Offenders Act.

By considering his plea, this court has taken a lenient view and convicted him under section 235(2) of Cr.P.C and sentenced him to undergo Rigorous Imprisonment for a period of 3 years and he shall also pay fine of Rs.20,000-00 (Rupees twenty thousand only), in default of fine amount, he shall undergo simple imprisonment for a period of 4 (four) months for the offence punishable under section 8(c) 20(b)(ii)(B) of the Narcotic Drugs & Psychotropic Substances Act, 1985. The Accused/convict has been in jail since 30.12.2019. The period of detention i.e., from 30.12.2019 till today i.e., 04.02.2022, already undergone by the accused shall be set off under Section 428 of Cr.PC. He shall suffer the remaining period of sentence of imprisonment. The material object No.1 i.e., sample packet of ganja shall be destroyed after expiry of appeal time. The accused is informed about his right of appeal. Office is directed to give free copy to the accused.

This case coming on 17.12.2021 for final hearing before me in the presence of Sri T.Siva Prasada Rao, learned Special Public Prosecutor for the complainant/State and Sri P.S.Gandhi, learned Advocate for the accused and the matter having been stood over to this day for consideration, this court delivered the following:

J U D G M E N T

01. The Sub-Inspector of Police, Railway Police, G.R.P Station,

Palasa filed charge sheet against the accused for the offence punishable Under Section 8 (c) 20(b)(ii) (B) of the Narcotic Drugs &

Psychotropic Substances Act, 1985, alleging as under. :-

02. On 31.08.2019 at 15.30 hours, on complaint through

RPF help line 182, PW.4-LW.8/Karunakar Sahu the then RPF

Inspector of Police with the assistance of LW.9 to LW.12 viz., PW.6- 3 Sessions Case No. 26/2021 I ADJ Court, Srikakulam Dt.04.02.2022

K.R.Maharana the then RPF ASI, CR Bishoyi the then RPF

Constable, PW.5-S.Bhaskar Rao the then GRP constable and

L.Ashok Kumar, GRP Constable found the luggage bag in train

No.22974 Puri Ghandhigam Express in S.5 coach inside the toilet at

Palasa RSPF No.2 in front of Janahahar Canteen. Immediately,

PW.4-LW.8/Karunakar Sahu the then RPF Inspector of Police searched for the accused but could not apprehended him.

PW-4-LW.8/Karunakar Sahu the then RPF Inspector of Police remove the bag from the said toilet from the train to the platform and immediately PW.4-LW.8/Karunakar Sahu the then RPF Inspector of

Police gave a requisition to LW.1/Sana Babji Rao the then Tahsildar conduct search on the said bag in the presence of LW.2/Harjeet

Singh and PW.1-LW3/ Chapa Hari Krishna with the help of LW.8 to

LW.12. The entire search and seizure was done in the presence of mediators under cover of mediators report on 31.08.2019. The luggage bag contained ganja total weighing about 9.5 kgs.

LW.1/Sana Babji Rao the then Tahsildar during the search on bag, found one packet contained 9.5 kgs of ganja. Later the bag was got weighed by PW.2-LW.4/Kota Baburao the then VRO.

LW.1/Sana Babji Rao the then Tahsildar collected two sample packets from the seized ganja as 100 grams each for samples in polythene covers for the purpose of Court and for chemical analysis to REL, Visakhapatnam. The samples collected for the purpose of

Court is numbered as 1-A and the sample to REL, Visakhapatnam is numbered as 1-B. All the events of search and seizure was done as per the provision of NDPS Act and under the mediators report duly 4 Sessions Case No. 26/2021 I ADJ Court, Srikakulam Dt.04.02.2022 drafted at the scene of offence and signed by LW.1/Sana Babji Rao the then Tahsildar, LW.2/Harjeet Singh and PW.1-LW.3. Slips duly signed by the LW.1/Sana Babji Rao the then Tahsildar, Lw.2 and

PW.1-LW.3 were duly pasted in the seized bags with ganja samples.

Later, the contraband seized and the samples were handed over to PW.8-LW.15/K.Ravi Kumar the then RPSI along with the mediators report, basing on which PW.8-LW.15, registered a case in

Crime No.149/2019 under section 43(a) of NDPS Act, 1985 & 102

Cr.P.C of Palasa GRP Station on 01.09.2019 at 11.00 hours and took up investigation.

PW.8-LW.15/K.Ravi Kumar the then RPSI sent the samples to

REL, Visakhapatnam for chemical analysis and LW.13/G.Srinivasa

Rao, the then Government Chemical Examiner after examining the samples issued report/opinion that S.No.16453 was Ganja.

Further on 18.11.2019, PW.7-LW.14 /H.Upendra the then

RPSI arrested the accused at Vizianagaram Railway Station PF No.4 in their crime No.139/2019 under section 8© 20(b)(ii)(c) of NDPS

Act, Vizianagaram RPS. The accused also voluntarily confessed the offence in this case on 31.08.2019 and further added that he abandoned the luggage bag containing Ganja weighing 9.5 kgs in the toilet of train No.22974 Puri Ghandhigam. Later the accused was produced before the Court on PT warrant and at present he was in jail. PW.8-LW.15/K.Ravi Kumar the then RPSI after completion of investigation filed charge sheet against the accused.

5 Sessions Case No. 26/2021 I ADJ Court, Srikakulam Dt.04.02.2022

03. This case was taken on file for the offence against the accused punishable Under Section 8(c) 20(b)(ii)(B) of the Narcotic Drugs &

Psychotropic Substances Act, 1985.

04. From the beginning, the accused has been in jail since 30.12.2019 and produced on P.T Warrant and he is being tried as under trial prisoner. On production of the accused before this court, he was furnished with the copies of documents relied upon by the prosecution, as required under Section 207 Cr.P.C.

05. Having heard the learned Special Public Prosecutor and learned Defence counsel and on considering the material on record, charge under Section 8(c) 20(b)(ii)(B) of the Narcotic Drugs &

Psychotropic Substances Act, 1985 is framed against the accused, the said charge was read over and explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

06. During the course of trial, in order to prove its case, prosecution has examined PWs.1 to 8 and got marked Exs.P.1 to P.6 and M.O.1. After closure of prosecution side evidence, the accused was examined under Section.313 (1) (b) of Cr.P.C. by explaining the incriminating evidence against him, to which he denied the same.

The plea of the accused was one of total denial, but, he did not choose to adduce any evidence on his behalf.

07. Heard both sides.

6 Sessions Case No. 26/2021 I ADJ Court, Srikakulam Dt.04.02.2022

08. Now the point that arises for determination is “Whether the prosecution is able to prove the guilt of the accused for the charge levelled against him , beyond all reasonable doubt”?

09. POINT:

The learned Special Public Prosecutor contended that on 31.08.2019 a complaint was received through RPF help line No.182 at 15.30 hours. PW.4 with the assistance of PW.5 and LW.6/G.Siva

Sankar and others found luggage bag in Puri Gandhigam Express in

S.5 coach kept inside the toilet, immediately PW.4 searched for the accused but could not apprehend him then he removed he bag from the toilet from the train platform and gave requisition to

LW.1/Sana Babji Rao the then Tahsildar, Palasa who is Gazetted

Officer to conduct search in the presence of LW.2/Harjeet Singh and PW.1 mediators and seized under the cover of mediators report as the luggage bag contained total ganja of Kgs 9.50 grams and

PW.2 also got weighed the property as Kg.9.50 grams and

LW.1/Sana Babji Rao the then Tahsildar (deceased) collected two sample packets 100 grams each in polythine cover and sample was sent to REL and seized contraband and samples were handed over to

PW.8 who registered the case in Crime No.149/2019 under section 43(a) of Narcotic Drugs & Psychotropic Substances Act, 1985 & 102

Cr.P.C of Palasa GRP Station and PW.8 issued Ex.P.5 First

Information Report and argued that later the accused was arrested by Vizianagaram police on 18.11.2019 wherein the accused confessed that the property in this crime i.e. 149/2019 was also brought by the accused for sale and kept near the toilet and then 7 Sessions Case No. 26/2021 I ADJ Court, Srikakulam Dt.04.02.2022

Vizianagaram police intimated the same to Palasa GRP Station, subsequently steps were taken for production of accused before this court and argued that in this case, the search and seizure procedure prescribed under the Narcotic Drugs & Psychotropic Substances

Act, 1985 has been followed and the accused is liable to be convicted. Hence, the prosecution proved the guilt of the accused beyond reasonable doubt.

10. The learned counsel for the accused contended that the accused is handicapped person so the case of prosecution that when the accused trying to escape, Vizianagaram Police caught hold him is absurd to believe and argued that a false case is foisted. The accused was brought before the court on P.T Warrant and that a false case is foisted. The accused was brought before the court on

P.T Warrant and he regularly attended for trial proceedings before this court when he was observed it is true he is a handicapped person but the contention of the accused counsel is not accepted that he cannot carry the bag as he is handicapped person.

11. The next contention of the learned counsel for the accused is basing on the confession made by the accused, he has been implicated in this crime number which is hit by Section 25 of

Evidence Act.

12. The perusal of record shows initially the case has been registered under Crime No.149/2019 under section 43(a) of NDPS

Act, 1985 & 102 Cr.P.C of Palasa GRP Station and First Information

Report is registered which is marked as Ex.P.5 and subsequently after the accused was caught by Vizianagaram police, the recovery 8 Sessions Case No. 26/2021 I ADJ Court, Srikakulam Dt.04.02.2022 relating to this case has been confirmed on confession made by the accused. The property involved in this case is kg 9.50 grams of ganja.

13. PW.1 stated before the court that he is running railway canteen in Palasa Railway Station and on 31.08.2019 he was called by Railway police while he was present in the canteen at about 2.30 pm., on the same day again he was called at 7.30 Pm., on that day in the after noon, one bag was got down from Puri Gandhigam Express found in S.5 Coach at Plot Form No.2. The MRO opened the bag since it was emitting smell. Then he also saw that the bag contained ganja weighing about kg 9.50 grams. The MRO, ASI

Railway Police brought weighing machine from railway parcel office and weighed the said property. Later two packets with each 100 grams was lifted for the purpose of sample from out of the said property. He signed on the slip attached to sample packets. Four others also signed on the slips. LW.2/ Harjith Singh, himself,

Constable, ASI and MRO (LW.1) signed on the slips of sample packets. LW.1/Sama Babji Rao the then Tahsildar got prepared

Ex.P.1 mediators report. M.O.1 is sample packet. He also singed on the mediators report. Witness identified the signature of the MRO (LW.1). In this case property was produced searched in the presence of the MRO i.e., LW.1/Sama Babji Rao. But during pendency of trial,

LW.1 Gazetted officer who is authorized to conduct search proceedings under NDPS Act died. Therefore the prosecution could not examine LW.1/Sana Babji Rao the then Tahsildar. To substantiate their case, the prosecution examined LW.3/Chapara 9 Sessions Case No. 26/2021 I ADJ Court, Srikakulam Dt.04.02.2022

Harikrishna as PW.1 who participated in the search proceedings on 31.08.2019. So the evidence of PW.1 is corroborating and supporting the prosecution version on each and every aspect of search and seizure proceedings prescribed under the Narcotic Drugs & Psychotropic Substances Act, 1985. Nothing has been elicited in the cross examination of PW.1.

14. PW.2 stated that he is Village Revenue Officer of

Vizianagaram, on 18.11.2019 at about 2 pm., he went to Railway

Station, Vizianagaram as called by Vizianagaram police. Another

VRO Jogaram, himself and Ramakrishna/Deputy Tahsildar went to

Plot Form No.4 and they all were moving from this side to that side.

On seeing them, two persons trying to escape with two bags. They questioned about the bags as they were emitting ganja smell. On that the Deputy Tahslidar and staff opened the bag, those persons were speaking in Hindi. All the four bags were got weighed which came to 28 kgs of ganja, some portion of the ganja was lifted as sample. Ex.P.2 is the certified copy of mediators report . Witness identified his signature and stated that he signed on the report.

The report was scribed by the constable. Witness identified the accused present in the dock as one among the two. PW.2 further stated, the accused stated for the last some period they are doing the said business and in the month of August when they brought the property for sale, the said property was seized by the police.

15. The learned counsel for the accused contended that there is suspicion with regard to the seizure of the property from the possession of accused because PW.2 stated the property caught in 10 Sessions Case No. 26/2021 I ADJ Court, Srikakulam Dt.04.02.2022 the month of August at Palasa Railway station was traced at

Vizianagaram. It is true the incident at Palasa happened in the month of August and the accused were caught in the month of

November by Vizianagaram police. But the evidence of PW.2 is clear the property was recovered from the possession of accused and he was present at Vizianagaram Railway Station where from some property was seized from the possession of accused.

16. The perusal of record shows two persons were found at

Vizianagaram police station and 28 kgs of ganja was seized from their possession and further a case in crime No.139/2019 under section 8 (c) 20(B) 2(c) of NDPS Act was registered and regarding this case, the accused voluntarily confessed.

17. Ex.P.1 is the mediators report dated 31.08.2019 at 19.30 hours. It establishes that kgs 9.50 grams packet was seized and

Ex.P.2 mediators report is establishing that on 18.11.2019 two persons were caught by Vizianagaram police who were speaking

Hindi language and translated.

18. The learned counsel for the accused contended that as per the mediators report marked as Ex.P.2, the accused confessed that on 18.11.2019 after reaching Vizianagaram to go to

Bhuvaneswar and from there to Utter Pradesh and when they were waiting to get into Howra Mail at Platform No.4, in the mean while

GRP Police caught hold them and when such is the case if anybody wants to go to Utter Pradesh, he need not touch Vizianagaram or

Srikakulam and it shows the accused was voluntarily implicated.

But that contention is not accepted because they were found at 11 Sessions Case No. 26/2021 I ADJ Court, Srikakulam Dt.04.02.2022

Vizianagarm railway station and there is no bar to go via

Viziangaram and to get into Howra Mail at Vizianagaram to go to

Utter Pradesh.

19. PW.3 is the main witness, he is the TTI, Visakhapatnam and stated that on 31.08.2019 at about 11 am., he received a message through railway enquiry, complaining against unclaimed property. Then he visited S.5 coach and found the bag inside the toilet and train was stopped at Palasa on Plot Form No.2 of Palasa.

Railway police got down the bag. Later the passengers and himself have shown the bag to railway police at Palasa. Nothing material is elicited in the cross examination of PW.3. So the evidence of PW.3 is very clear that unclaimed property was found in S.5 coach in Puri

Gandhigam Express inside toilet and none of the passengers claimed the property that is why Pw.3 who received the message, intimated to the concerned police about the property.

20. PW.4 is the Inspector of Police, he stated that on 31-8-2019 he received information from security control Khurda road that one trally bag was lying inside the toilet in S.5 coach,

Puri Gandhigam express, on arrival of the said train at Platform No.2 in Palasa Station, himself along with ASI J.R.Maharana, Bisoy constable along with G.R.P.F constables Bhaskara Rao, Harjit

Kumar attended the coach S-5. The TTI was on duty, PW.3 along with others, himself verified the toilet and found one black coloured

Trally bag was lying in side the toilet on the left side. He informed the

Superior Officers and also LW.1/MRO of Palasa for checking the bag as it is smelling Ganja by sending requisition to M.R.O and he 12 Sessions Case No. 26/2021 I ADJ Court, Srikakulam Dt.04.02.2022 also sent requisition to Station Master for weighing the property and sent a letter to S.H.O., G.R.P Palasa and ExP3 is the letter sent to

S.H.O. G.R.P.Palasa. He further stated A.S.I. Maharana seized the

Ganja, the property was found kg. 9.50 grams in the packet and sample was lifted, mediators report was prepared as dictated by

MRO, as G.R.P. is authorized, he did not sign on mediators report.

He handed over the case record to G.R.P for further investigation.

Nothing material is elicited from the cross examination of PW.4.

21. PW.5 stated that he is working as G.R.P Constable, the

Police staff, RPF also arrived on the platform of Palasa Railway

Station. On inquiry, he was informed that the TT received a call through phone No.139 about S-5 coach regarding the bag . He sated in his cross examination that the bag was not opened in his presence. He was on duty till 4.30 pm., or 5 pm., on that day.

22. PW.6 stated he worked in Palasa RPF as Assistant Sub

Inspector of Police, public gave complaint to the number 182 and then the Security Controller informed them about the complaint with regard to keeping a bag near toilet in S5 coach of

Purigandhigam express which was stopped on plot form No.2. The train came at 3.25 pm . The TT staff, himself and his staff and

GRP staff and TT verified the bag, they found ganja in the bag and enquired the passengers but nobody came forward to claim the property. He also intimated to the inspector about the property.

One Harjit singh and PW.1/Ch.Harikrishna acted as mediators and he prepared the seizure list in the presence of mediators. Ex.P.4 is seizure list. It is suggested in the cross examination of PW.6 by the 13 Sessions Case No. 26/2021 I ADJ Court, Srikakulam Dt.04.02.2022 accused counsel that he is not competent to prepare seizure list and the inspector alone is competent, which is denied and Ex.P.4 is also supporting the prosecution version that on 31.08.2019 the property i.e, ganja was traced in the train which was unclaimed.

23. PW.7 stated that he is working as Inspector of Police, previously he worked as Sub Inspector of Police GRP, Palasa, he stated that on information, he secured the presence of PW.2 and

LW.5 Venkataramana Jogarao and proceeded towards plot form

No.4 in Vizianagaram Railway station along with his staff. On 18.11.2019 two unknown persons trying to escape on seeing police with bags, then they questioned them separately in the presence of

PW.2 and LW.5 and Tahsildar. They voluntarily confessed and disclosed names and addresses and involvement of transporting ganja from Koraput to U.P State. Further the involvement of accused in crime No.149/2019 of Palasa GRP. On that they drafted mediators report and seized ganja property and got weighed the property. He further stated that the accused in the month of August 2019, he purchased some ganja in Puri Railway station and got into train No.22974 and sat in S.5 coach further at Palasa Railway station after seeing the police party, he put the ganja luggage bag in the toilet of the S5 coach and sat as usual in S.5 coach.

24. PW.7 stated in his cross examination the property of kg 28.07 grams were seized, as the property involved in crime

No.139/2019 of Vizianagaram Police Station. He further stated he does not know a person has no need to go from Puri to Uttar

Pradesh to come to Srikakulam or Vizianagaram. He denied that the 14 Sessions Case No. 26/2021 I ADJ Court, Srikakulam Dt.04.02.2022 accused cannot carry even 10 kgs weight along with him as he is handicapped by birth.

25. PW.8 stated that he registered a case in Crime No.149/2019 under section 43(a) of NDPS Act, 1985 & 102 Cr.P.C of Palasa GRP

Station and examined the witnesses, he forwarded the samples to

REL Visakhapatnam. During the course of investigation on 18.11.2019 he received information from Station House Officer, GRP

Vizianagaram about the arrest of the accused /Rajendhasingh, the

Station House Officer also informed him about the confession made by him in Palasa case in Crime No.149/2019. Later he filed petition before the Court of VI MM Railway Court, Visakhapatnam on P.T warrant against the accused and Ex.P.6 is FSL Report.

26. The perusal of record shows, in this case the accused was produced on P.T Warrant on 30.12.2019. Nothing matter is elicited in the cross examination of PW.8.

27. In this case almost all the witnesses are official witnesses, they have no need to give a false evidence against accused or to falsely implicate the accused and Ex.P.6 Forensic Science Laboratory

Report proves that the property is ganja and the First Information

Report is very clear that initially case was registered in Crime

No.149/2019 under section 43(a) of NDPS Act, 1985 & 102 Cr.P.C of Palasa GRP Station, by that time the accused was not known and the evidence of PW.8 is clear that subsequently they received information from GRP, Vizianagaram Police about the arrest of the accused and gave confession about the involvement of the offence in this crime number and filing P.T warrant for producing before the 15 Sessions Case No. 26/2021 I ADJ Court, Srikakulam Dt.04.02.2022

Court for trial. Therefore the evidence of all the witnesses is establishing that the prosecution followed the procedure prescribed under Narcotic Drugs & Psychotropic Substances Act, 1985 for searching and seizing the property at the time of search and seizure of the property and they followed the procedure.

28. Since it is established by the prosecution that the property was seized and accused left the bag containing ganja and to escape from the liability of arrest, he kept quiet in the train.

29. In the above said circumstances, the prosecution successfully proved the guilt of the accused for the offence under section 8(c) 20(b)(ii)(B) of the Narcotic Drugs & Psychotropic

Substances Act, 1985 beyond all reasonable doubt. Therefore, this court came to conclusion that the accused is found guilty for the offence punishable under section 8(c) 20(b)(ii)(B) of the Narcotic

Drugs & Psychotropic Substances Act, 1985.

30. In the result, the accused is found guilty for the offence punishable under section 8(c) 20(b)(ii)(B) of the Narcotic Drugs &

Psychotropic Substances Act, 1985 and he is convicted for the said offence under section 235 (2) of Cr.P.C.

Dictated to the Stenographer, transcribed by her, corrected and

pronounced by me in open court, this the 4th day of February, 2022.

Sd/-Smt.P.Annapurna

Special Judge for trial of Cases

under Narcotic Drugs and Psychotropic Substances Act-cum- I Addl. District & Sessions Judge, Srikakulam.

16 Sessions Case No. 26/2021 I ADJ Court, Srikakulam Dt.04.02.2022

Accused is questioned about the quantum of sentence tobe imposed against him.

The accused produced before me today and heard on quantum of sentence. The accused has stated he is handicapped and he is having three small kids and his wife and children are taking shelter at his in-laws house due to his detention in jail and that he lost his parents long back and except himself, nobody to look after his wife and children and pleaded mercy. Taking into consideration of the socio, economic conditions of the accused and his family back ground, I feel that it is a fit case to take a lenient view. In view of bar under Section 33 of the Narcotic Drugs &

Psychotropic Substances Act, the accused/convict is not entitled to the benefit under the provisions of Probation of Offenders Act.

By considering his plea, this court has taken a lenient view and convicted him under section 235(2) of Cr.P.C and sentenced him to undergo Rigorous Imprisonment for a period of 3 years and he shall also pay fine of Rs.20,000-00 (Rupees twenty thousand only), in default of fine amount, he shall undergo simple imprisonment for a period of 4 (four) months for the offence punishable under section 8(c) 20(b)(ii)(B) of the Narcotic Drugs &

Psychotropic Substances Act, 1985.

The Accused/convict has been in jail since 30.12.2019.

The period of detention i.e., from 30.12.2019 till today i.e., 04.02.2022, already undergone by the accused shall be set off under

Section 428 of Cr.PC. He shall suffer the remaining period of sentence of imprisonment.

17 Sessions Case No. 26/2021 I ADJ Court, Srikakulam Dt.04.02.2022

The material object No.1 i.e., sample packet of ganja shall be destroyed after expiry of appeal time. The accused is informed about his right of appeal. Office is directed to give free copy to the accused.

Sd/-Smt.P.Annapurna,

Special Judge for trial of Cases

under Narcotic Drugs and Psychotropic Substances Act-cum- I Addl. District & Sessions Judge, Srikakulam.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For Defence: None

P.W.1 : Chapa Harikrishna, PW.2 : Kota Baburao, Village Revenue Officer. PW.3 : B.Satyam, TTI Visakhapatnam PW.4 : Karunakar Sahu, Inspector of Police RPF. PW.5 : S.Bhaskara Rao, GRP Constable PW.6 : K.R Maharana, Retired RPF Assistant Sub Inspector. PW.7 : H.Upendra, Inspector of Police. PW.8 : K.Ravi Kumar, Inspector of Police Special Branch, Visakhapatnam.

DOCUMENTS MARKED

For Prosecution:

Ex.P.1/ 31.08.2019 Mediators report Ex.P.2/ 18.11.2019 Certified copy of mediators report Ex.P.3/ 01.09.2019 Letter addressed to Station House Officer, GRP Police. Ex.P.4/ 31.08.2019 Seizure list Ex.P.5/ 01.09.2019 First Information Report in Crime NO.149/2019 of , Railway Police, G.R.P Station, Palasa Ex.P.6/ 19.09.2019 Forensic Science Laboratory Analysis Report

FOR DEFENCE: NIL 18 Sessions Case No. 26/2021 I ADJ Court, Srikakulam Dt.04.02.2022

Material objects marked.

M.O.1: Sample packet of ganja

Sd/-Smt.P.Annapurna,

Special Judge for trial of Cases

under Narcotic Drugs and Psychotropic Substances Act-cum- I Addl. District & Sessions Judge,

Srikakulam.

// True copy //

Special Judge for trial of Cases

under Narcotic Drugs and Psychotropic Substances Act-cum- I Addl. District & Sessions Judge,

Srikakulam.

19 Sessions Case No. 26/2021 I ADJ Court, Srikakulam Dt.04.02.2022 20 Sessions Case No. 26/2021 I ADJ Court, Srikakulam Dt.04.02.2022

CALENDAR

IN THE COURT OF THE SPECIAL JUDGE FOR TRIAL OF CASES

UNDER N.D.P.S. ACT CUM I ADDITIONAL DISTRICT & SESSIONS

COURT, SRIKAKULAM.

Present: Smt.P.Annapurna,

Special Judge for trial of cases under N.D.P.S. Act cum I Addl.

District Judge, Srikakulam.

FRIDAY, THIS THE 4TH DAY OF FEBRUARY, 2022

SESSIONS CASE No.26/2021

(Crime No.149/2019 of Palasa G.R.P Station)

Between:

State represented by the Sub Inspector of Police, Palasa G.R.P Station.

… Complainant.

And

Rajendra Singh, S/o late Chandrapaul, age 38 years, Rajput/C, Occupation: Labor, R/o Aroli village, Etah District, Uttarpradesh State.

… Accused.

Offence: 8(c) 20(b)(ii)(B) of the Narcotic Drugs & Psychotropic Substances Act, 1985.

Date of offence: 31.08.2019

Date of report or complaint: 31.08.2019

Date of appearance of accused: 30.12.2019(Produced on P.T Warrant)

Date of commencement of trial: 27.12.2021

Date of close of trial: 07.01.2022

Date of sentence or order: 04.02.2022

Plea of accused: Pleaded not guilty

Finding of Court: Found guilty

Sentence or order: In the result, the accused is found guilty for the offence punishable under section 8(c) 20(b)(ii)(B) of the Narcotic Drugs & Psychotropic Substances Act, 21 Sessions Case No. 26/2021 I ADJ Court, Srikakulam Dt.04.02.2022 1985 and he is convicted for the said offence under section 235 (2) of Cr.P.C.

Accused is questioned about the quantum of sentence tobe imposed against him.

The accused produced before me today and heard on quantum of sentence. The accused has stated he is handicapped and he is having three small kids and his wife and children are taking shelter at his in-laws house due to his detention in jail and that he lost his parents long back and except himself, nobody to look after his wife and children and pleaded mercy. Taking into consideration of the socio, economic conditions of the accused and his family back ground, I feel that it is a fit case to take a lenient view. In view of bar under Section 33 of the Narcotic Drugs & Psychotropic Substances Act, the accused/convict is not entitled to the benefit under the provisions of Probation of Offenders Act.

By considering his plea, this court has taken a lenient view and convicted him under section 235(2) of Cr.P.C and sentenced him to undergo Rigorous Imprisonment for a period of 3 years and he shall also pay fine of Rs.20,000-00 (Rupees twenty thousand only), in default of fine amount, he shall undergo simple imprisonment for a period of 4 (four) months for the offence punishable under section 8(c) 20(b)(ii)(B) of the Narcotic Drugs & Psychotropic Substances Act, 1985.

The Accused/convict has been in jail since 30.12.2019. The period of detention i.e., from 30.12.2019 till today i.e., 04.02.2022, already undergone by the accused shall be set off under Section 428 of Cr.PC. He shall suffer the remaining period of sentence of imprisonment.

22 Sessions Case No. 26/2021 I ADJ Court, Srikakulam Dt.04.02.2022

The material object No.1 i.e., sample packet of ganja shall be destroyed after expiry of appeal time. The accused is informed about his right of appeal. Office is directed to give free copy to the accused.

Explanation for delay: -

Police filed charge sheet before this court on 03.12.2021 and on 03.12.2021 the same is taken into cognizance. On 30.12.2019 the accused is produced on execution of P.T Warrant He made his appearance and copies furnished to him. On 14.12.2021, charges for the offences punishable under Sections 8(c) 20(b)(ii)(B) of Narcotic Drugs & Psychotropic Substances Act, 1985 framed against accused and he denied the said charges.. From 14.12.2021 schedule is given for commencement of trial. On 27.12.2021, PW.1, on 28.12.2021 PWs. 2, 3 and 5, on 30.12.2021 P.W.4, and on 07.01.2022 P.W.6 to 8 are examined and prosecution side evidence is closed and on 10.01.2022 the accused is examined under Section 313 (1)(b) Cr.PC and posted for defence side and defence reported no evidence and hence trial closed. On 31.01.2022 arguments heard and on 04.02.2022 judgment is pronounced.

Sd/-Smt.P.Annapurna

Special Judge for trial of Cases

under Narcotic Drugs and Psychotropic Substances Act-cum- I Addl. District & Sessions Judge,

Srikakulam.

Note:

Accused not paid the fine amount.

Copy of calendar and judgment furnished to the accused today ie., on 04.02.2022 at free of cost.

23 Sessions Case No. 26/2021 I ADJ Court, Srikakulam Dt.04.02.2022 24 Sessions Case No. 26/2021 I ADJ Court, Srikakulam Dt.04.02.2022 25 Sessions Case No. 26/2021 I ADJ Court, Srikakulam Dt.04.02.2022 26 Sessions Case No. 26/2021 I ADJ Court, Srikakulam Dt.04.02.2022 27 Sessions Case No. 26/2021 I ADJ Court, Srikakulam Dt.04.02.2022

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

NARCOTIC DRUGNS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 -CUM- 1ST ADDL. DISTRICT & SESSIONS JUDGE, SRIKAKULAM.

Present: Smt. P.Annapurna,

Judge, Family Court-cum- III Additional District & Sessions Judge, Srikakulam

FAC: SPECIAL JUDGE FOR TRIAL OF CASES UNDER THE NARCOTIC DRUGNS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 -CUM-1ST ADDL. DISTRICT &

SESSIONS JUDGE, SRIKAKULAM

THURSDAY, THIS THE 1st. DAY OF APRIL, 2021

SESSIONS CASE No. 10/2020

(Crime No.106/2019 Gara Police Station)

Between: State represented by the Inspector of Police, Srikakulam circle And A1. Nageswari Ramakrishna son of late Narayudu, 70 years, Kandra by caste, Kandra veedhi, Srikurmam village, Gara mandal. A2: Perisetti Sriram son of late Satyanarayana, aged 65 years, Padmasali by caste, Vedullavalasa village, Polaki mandal, Srikakulam district ( saint) Prosecution was Sri K.Tirumala Rao, Special Public Prosecutor conducted by: Accused was Sri C.Ram Mohan, Advocate for the A1. defended by: Sri K.Apparao, Legal Aid counsel for A2 Offences: Sec.20(b) (ii)(B) of Narcotic Drugs and Psychotropic Substances Act, 1985 Date of offence: 18.05.2019 Date of report or 18.05.2019 complaint Charge sheet filed 01.11.2019 on Date of appearance 14.12.2020 of accused:

Date of 03.03.2021 commencement of trial: Date of closure of 16.03.2021 trial Explanation for On 04.12.2020 case was taken into cognizance. On delay 19.01.2021 charges have been framed against the accused Nos.1 and 2, read over and explained to the accused in Telugu for which they pleaded not guilty and claimed to be tried. On 3.3.2021 PW1 examined, on 4.3.2021 PW2 to PW4 examined, on 05.03.2021 PW5 examined, on 8.3.2021 PW6 and PW7 examined, on 2 S.C.No.10 of 2020 1st ADJ Court, Srikakulam, dt. 01.04.2021 15.3.2021 PW8 examined in chief and on 16.3.2021

PW8 was cross examined, prosecution side evidence is closed, on 18.3.2021 the accused Nos.1 and 2 were examined under Sec.313 Cr.P.C. and reported no defence on their behalf, on 25.03.2021 arguments of both sides were heard and on 01.04.2021 Judgment is

pronounced.

Sentence or Order In the result, accused Nos.1 and 2 are found not guilty for the offence punishable Under Sec.20(b)

(ii)(B) of Narcotic Drugs and Psychotropic Substances

Act, 1985 and that they are acquitted under Sec.235(1) of Cr.P.C. for the said offence.

M.Os 1 and 2 shall be destroyed after appeal time is over.

The bail bonds of accused No.1 shall stand cancelled after expiry of Six months as per Sec.437(A) of Cr.P.C.

Accused No.2 shall be released forthwith if he is not required in any other case/crime.

Sd/- P.Annapurna

Judge, Family Court-cum- III Additional District &

Sessions Judge, Srikakulam

FAC: SPECIAL JUDGE FOR TRIAL OF CASES UNDER

THE NARCOTIC DRUGNS AND PSYCHOTROPIC

SUBSTANCES ACT, 1985 -CUM-1ST ADDL. DISTRICT &

SESSIONS JUDGE, SRIKAKULAM

3 S.C.No.10 of 2020 1st ADJ Court, Srikakulam, dt. 01.04.2021

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

NARCOTIC DRUGNS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 -CUM- 1ST ADDL. DISTRICT & SESSIONS JUDGE, SRIKAKULAM.

Present: Smt. P.Annapurna,

Judge, Family Court-cum- III Additional District & Sessions Judge, Srikakulam

FAC: SPECIAL JUDGE FOR TRIAL OF CASES UNDER THE NARCOTIC DRUGNS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 -CUM-1ST ADDL. DISTRICT &

SESSIONS JUDGE, SRIKAKULAM

THURSDAY, THIS THE 1st. DAY OF APRIL, 2021

SESSIONS CASE No. 10/2020

(Crime No.106/2019 Gara Police Station)

Complainant State represented by the Inspector of Police, Srikakulam circle Accused A1. Nageswari Ramakrishna son of late Narayudu, 70 years, Kandra by caste, Kandra veedhi, Srikurmam village, Gara mandal. A2: Perisetti Sriram son of late Satyanarayana, aged 65 years, Padmasali by caste, Vedullavalasa village, Polaki mandal, Srikakulam district ( saint) Prosecution Sri K.Tirumala Rao, Special Public Prosecutor conducted by: Accused was Sri C.Ram Mohan, Advocate for the A1. defended by: Sri K.Apparao, Legal Aid counsel for A2 Offences: Sec.20(b)(ii)(B) of Narcotic Drugs and Psychotropic Substances Act, 1985 Plea of Pleaded not guilty. accused: Finding of the Found not guilty.

Judge:

Sentence or In the result, accused Nos.1 and 2 are found not Order: guilty for the offence punishable Under Sec.20(b) (ii)(B) of

Narcotic Drugs and Psychotropic Substances Act, 1985 and that they are acquitted under Sec.235(1) of Cr.P.C. for the said offence.

M.Os 1 and 2 shall be destroyed after appeal time is over.

The bail bonds of accused No.1 shall stand cancelled after expiry of Six months as per Sec.437(A) of

Cr.P.C. Accused No.2 shall be released forthwith if he is not required in any other case/crime.

4 S.C.No.10 of 2020 1st ADJ Court, Srikakulam, dt. 01.04.2021

This case coming on 25.03.2021 for final hearing before me in the presence of

Sri K.Tirumala Rao, learned Special Public Prosecutor for the complainant/State and of Sri C.Ram Mohan, Advocate for the accused No.1 and of Sri K.Apparao, Legal Aid counsel for Accused No.2 and the matter having been stood over to this day for consideration, this court delivered the following:

J U D G M E N T

01. The Inspector of police, Srikakulam circle filed charge sheet against the accused Nos.1 and 2 for the offence punishable under Sec.20(b) (ii)(B) of Narcotic

Drugs and Psychotropic Substances Act, 1985 ( for brevity” the N.D.P.S. Act, 1985) in Crime No.106/2019 of Gara police station, alleging that,

On 18.05.2019 the Sub Inspector of police, Gara police station on receipt of reliable information visited the house of accused No.1 at about 15.00 hours along with mediators LW6/Boddeypalli Sanaysi Rao and LW4/Gudena Trinadharao along with Head constable 808 and Police constable/1101/GVD Prasad and reached to the thatched house of accused No.1 at Kandraveedhi of Srikurmam village, there they found the accused Nos.1 and 2 in possession of contraband narcotic i.e., Ganja by packing the dried ganja in white plastic bag in possession of accused No.1 and accused No.2 is in possession of raw greenish ganja in brown gunny bag and the

Sub Inspector of police, Gara examined the accused and property in the presence of above mediators and taken the accused into custody and on their willing, they were produced before the Dr.Kota Narayana Murthty/Veterinary Doctor for inspection of ganja and got recorded their confessional statements and weighed the contraband through LW4/Ganapa Narasinga Rao as 1400 grams of dried ganja and 4 kgs of raw greenish ganja and collected 24 grams of ganja as sample from each bag of seized contraband and arrested the accused in the presence of mediators and staff. Basing on the above, the Sub Inspector of police, Gara registered a case in Cr.No.106/2019 under Sec.20(b)(i) of N.D.P.S. Act, 1985.

It was further alleged that, LW10/Inspector of police, Gara took up investigation in this case and recorded the confessional statement of accused in the 5 S.C.No.10 of 2020 1st ADJ Court, Srikakulam, dt. 01.04.2021 presence of mediators on 18.5.2019, examined and recorded the statements of witnesses and sent the samples for chemical examination and received the analysis report in which the analyst opined that the samples are Ganja and after completion of investigation, the Inspector of Police/LW10 filed charge sheet against the accused

Nos.1 and 2.

02. This case was taken on file against Accused for the offences punishable

Under Sec.20(b) (ii)(B) of Narcotic Drugs and Psychotropic Substances Act, 1985.

03. On appearance of the accused before this court, he was furnished with the copies relied upon by the prosecution, as required under Sec.207 Cr.P.C.,

04. Having heard the learned Special Public Prosecutor and learned Defence counsel and on considering the material on record, charges for the offences punishable Under Sec.20 (b)(ii)(B) of Narcotic Drugs and Psychotropic Substances

Act, 1985 has been framed against the accused, the said charges were read over and explained to the accused in Telugu, for which they pleaded not guilty and claimed to be tried.

05. During the course of trial, in order to prove its case, prosecution has examined

PWs.1 to 8 and got marked Exs.P.1 to P.7 and MOs1 and 2. After closure of prosecution side evidence, the accused was examined under Section.313 (1) (b) of

Cr.P.C. by explaining the incriminating evidence against him, to which they denied the same. The plea of the accused was one of total denial, but, they did not choose to adduce any evidence on their behalf, but Ex.D1 is marked.

06. Heard both sides.

07. Now the point that arises for determination is “Whether the prosecution is able to establish the guilt of the accused for the offence punishable Under Sec.20(b) (ii)(B) of Narcotic Drugs and Psychotropic Substances Act, 1985 , beyond all reasonable doubt”?

08. POINT:

The learned counsel for the accused contends that PW6 the Sub

Inspector of police, Gara police station on receipt of reliable information visited the 6 S.C.No.10 of 2020 1st ADJ Court, Srikakulam, dt. 01.04.2021 house of accused No.1 at about 15.00 hours along with mediators PWs 5 and 6 and accused No.1 is found in possession of contraband narcotic dried ganja in a white plastic gunny bag and accused No.2 was found in possession of brown gunny bag and when they were produced before PW2, they observed the quantity of possession of 1400 grams with accused No.1 and the quantity in possession of accused No.2 is 4Kgs when it was weighed in the presence of PW3 with his weighing machine and the evidence of PWs 1 to 3 is corroborating with the evidence of PWs 4 and 5 who are mediators and the mediators report was drafted and the samples were lifted in the presence of mediators and PW6 to PW8 are the investigating officers in this case and argued that the prosecution established the case against the accused beyond all reasonable doubt.

The learned counsel for the accused contended that the police falsely implicated the accused by arresting the accused No.1 when he was near his house and also arrested A2 when he was present at the temple and nothing was seized from the possession of accused and PWs 4 and 5 are not only present at the time of proceedings as alleged by the prosecution and that PW2 is secured from Gara veterinary hospital, whereas the offence took place at Srikurmam and when the persons are available at Srikurmam and further argued that the prosecution has not followed the procedure prescribed under the act while lifting the sample or while arresting the accused etc., and argued that a false case is foisted.

09. PW1/Yaseen Alibaig, is the head constable he stated that on 18.5.2019 he accompanied the Sub Inspector of police/PW6 along with another constable PC 1101 and two Village Revenue Officers i.e., PW4 and PW5 and visited the house of accused No.1 and they disclosed their names, accused No.1 was holding plastic bag and accused No.2 was holding brown gunny bag and they found the dried ganja is in possession of accused No.1 and accused No.2 is in possession of leaves and shelves in the bag, they both stated that they brought the said property for sale at higher price and earn the money in easy way and the PW6 served notice under

Sec.50 of N.D.P.S. Act and they agreed to be present before the Gazetted Officer.

7 S.C.No.10 of 2020 1st ADJ Court, Srikakulam, dt. 01.04.2021

Ex.P1 is the Xerox copy of served notice. With regard to Ex.P1 it was marked subject to objection, as the defence counsel raised objection on the ground that it is a Xerox copy and it is relevant to read the evidence of PW6 who stated in her cross examination that she served the copy of notice and original copy is with her, but the original is not filed in this case and no explanation was given or no reasons were given for filing the Xerox copy of Ex.P1. Ex.P1 is only a Xerox copy.

10. PW2/Dr.K.Narayana Murthy, is the veterinary Doctor and he stated worked as veterinary Assistant surgeon during the relevant time. PW2 stated that on 18.5.23019 the Sub Inspector of police, Gara called him over phone and informed about the arrest of accused with ganja and requested him to act as mediator as the other gazetted officers are not available.

The counsel for the defence contends that there is no need to secure the mediators at Gara as the gazetted officers are very much available in Srikurmam itself. He relied on the cross examination of PW1 who stated that it is true there are village revenue officers, secretary, President and M.P.T.C. in Srikurmam and Z.P.

High School, Head master and Executive Officer of Srikurmam temple is also a gazetted officer and Z.P. High School Master is also gazetted officer. When PW6 is questioned about the same, she stated that they gave requisition to PW2 to act as mediator and she send the constable for gazetted officer as the E.O., and Head

Master are not available nearby the scene of offence. Ex.P5 is the requisition given to PW2 and they took the accused along with them to PW2. But the non-availability of gazetted officers at the scene of offence i.e, Srikurmam was not noted either in

Ex.P1 notice or in the statement of witnesses recorded by the investigating officer. It is very much admitted by the witness i.e., PW6 that the gazetted officers are available in Srikurmam. So it is for the prosecution to satisfy the court why they have not secured the gazetted officers at Srikurmam. It is the duty of the prosecution to satisfy the court that the gazetted officers are not available at that time. But in this case, though they stated orally but there is no convincing evidence before the court to support their contention, it is the duty of the prosecution to satisfy the court that 8 S.C.No.10 of 2020 1st ADJ Court, Srikakulam, dt. 01.04.2021 since the gazetted officers are not available at Srikurmam, PW6 has taken the accused and produced before PW2.

11. The learned counsel for the accused contended that there is nothing in the Act to produce the accused before the gazetted officers and if any case is found the gazetted officer has to be asked to be present at the scene of offence. For this also nothing was submitted by the prosecution to explain what is the need to take the accused to Gara to produce before PW2 instead of calling the gazetted officers from

Gara to Srikurmam i.e., the scene of offence. Regarding the notice/Ex.P1 there is suspicion according to defence counsel and the notice is not valid. But it will be discussed at a later stage in detail.

12. PW3/Gunapa Narasimha Murthy, stated that he is running a fair price shop and he was called by the Gara police on 18.5.2019 to bring the weighing machine to

Veterinary hospital and police asked him to weigh the property contained in the box in the possession of two persons and he weighed the same and they lifted 24 grams from each bag for the purpose of sample i.e., Ganja and leaves and shelves, later they prepared statement, he put his signature and he identified his signature.

Coming to his cross examination he stated that he does not know the names of the persons who are present in the dock, but they are accused. Weighing machine has the capacity of 50Kgs. It is true on 50 Kgs weighing machine, it is difficult to find out the correct measurement of 24 grams though it is a digital one. It is true digital weighing machine and electronic weighing machine are different.

The learned counsel for both the accused contended that, there are material contradictions in the evidence of PW3, PW2, PW5 and PW6 with regard to weighing machine. PW2 stated that weighing machine is electric one. PW3 stated that the weighing machine is a digital one. In his cross examination he also stated there is a difference between the digital weighing machine and electronic weighing machine.

PW5 the mediator also stated that it is an electrical weighing machine. PW6 the investigating officer who conducted the raid also stated that the weighing machine is 9 S.C.No.10 of 2020 1st ADJ Court, Srikakulam, dt. 01.04.2021 a digital one. This is also a material contradiction and there is no consistency in between the evidence of witnesses.

13. The defence counsel contends that there is no corroboration between the witnesses with regard to the proceedings or process that took place at veterinary hospital and it shows that nothing was happened in the presence of either the mediators or PW2 and the entire reports were prepared at the police station and nothing was seized from the possession of accused. He relied on the evidence of

PWs 2, 4 and 5.

PW2 stated in his cross examination that the entire process was done at the entrance of the hospital within the premises of the hospital in an open place. PW4 stated that the entire process was done in the hall of the hospital, he signed on three statements. PW5 stated that the entire proceedings took place in the hall of the hospital. PW6 stated that the entire proceedings were taken place in the hospital in a room situated opposite to the chambers of the Doctor in the hospital. Therefore, from the above evidence, it appears that there is no corroboration between the witnesses with regard to exact place where the proceedings were done and this is also a material contradiction because each witness stated a different place.

14. PW4 is the mediator he stated that one person was holding plastic bag and another person was holding gunny bag, on opening of the bags by Sub Inspector of police, they found dried ganja in a plastic bag and raw ganja stems in gunny bag. For this the learned counsel for the accused contends that, there is nothing in the statement of witnesses that from whose possession the plastic bag was seized and from which accused the gunny bag was seized, except in the charge sheet. He relied on the cross examination of PW8, she stated that there is nothing on record from which accused the said property was seized. The perusal of cross examination of PW8 does not show that white plastic bag was seized from the possession of accused No.1 and brown gunny bag was seized from the possession of accused

No.2 as mentioned in the charge sheet filed by her.

10 S.C.No.10 of 2020 1st ADJ Court, Srikakulam, dt. 01.04.2021

PW4 further stated that they all went to veterinary hospital and reached at 3 p.m., himself and another V.R.O., constable and Sub Inspector of police and accused were present in the hospital. PW2 questioned the accused and they stated that they are selling the ganja for the purpose of their livelihood to earn money in a easy way and they collected from the bunds of the lands situated nearby Srikurmam, later PW3 was called for the purpose of weighing and PW3 came and brought the machine and weighed the same, the dried ganja was measured 1400 grams and the raw ganja was measured at 4Kgs and after that, 24 grams from each bag was picked up for the purpose of samples in two separate packets, the accused were taken into custody and the above facts were reduced to writing in the form of report in the hospital which is marked as Ex.P3. The confessional statement of the accused was recorded at police station in their presence at 8 p.m. Ex.P4 is the confessional statement of accused. Witness identified his signature on the confessional statement. PW4 stated another village revenue officer drafted the report who was examined as PW5 in this case.

PW5/Boddepalli Sanyasi Rao, stated on the same lines as that of PW4. But the learned counsel for the accused contends that the said Village Revenue Officer has not mentioned that he is the scribe of report/Ex.P4. The learned special Public

Prosecutor contends that there is nothing in the criminal procedure code the words that he scribed the documents has to be mentioned. However, in this case the scribe himself is examined as PW5. So, there is no force in the contention of the defence counsel, because there is no ambiguity that who drafted the reports.

15. In this case, Ex.D1 is marked in the cross examination of PW1 that he did not state before the police that polythene bag was seized from the possession of accused No.1 and gunny bag was seized from the possession of accused No.2 as in

Ex.D1, he denied the same. The perusal of Ex.D1 does not show that polythene bag was seized from the possession of accused No.1 and gunny bag was seized from the possession of accused No.2. So, it is also a material contradiction. The very contradiction marked is relevant to the property seized from the possession of 11 S.C.No.10 of 2020 1st ADJ Court, Srikakulam, dt. 01.04.2021 accused and the seizure plays an important role in N.D.P.S Act, because the offence is very serious one.

16. The learned counsel for the accused contends that no property was seized from the possession of accused Nos.1 and 2 and even as per the R.F.S.L. report and he relied on the evidence of investigating officers examined as PW6 to PW8. PW6 stated that they picked up the samples from each bag separately in the presence of mediators, village revenue officer prepared the slips, she does not know the number noted on the slip as 1264/2019 after she handed over the property. It is true they seized the property and pasted the slips in the presence of veterinary Doctor/PW2 . It is true, as per procedure the samples will be directly sent to the RFSL for analysis.

She admitted that, for sending the sample, the quantity of measurement of property must not be less than 24 grams as it is difficult to detect the same. After seizing the property and after taking the samples, they keep the samples in a box while sending to the FSL after putting the seal on the box.

PW7 stated in his cross examination, he sent the sample to RFSL and he has noted the serial number while sending to RFSL if the properties are more in number but not in all cases. He admitted that MOs 1 and 2 were sent to RFSL without giving the serial numbers as noted on the slips. When it is the case of the prosecution that the samples were lifted and the same have been marked as MOs 1 and 2, they have to explain that the property which has been lifted had been sent to RFSL. But in this case there is a discrepancy between the evidence of PWs 6 and PW7 with regard to sending the sample to RFSL, because as per the procedure they shall be directly sent to FSL for analysis. As per PW7 he sent the samples to RFSL and he will note the serial number if the properties are more in number, but in this case only MOs 1and 2 were sent to RFSL. So according to them, they did not note the serial number 1264/2019, but the RFSL expert was not examined to clarify the same. So who mentioned the above serial number is also not explained by the prosecution. It is already stated that the property is very important in NDPS Act case to ascertain the real culprit involved in the commission of the offence.

12 S.C.No.10 of 2020 1st ADJ Court, Srikakulam, dt. 01.04.2021

The perusal of RFSL report marked as Ex.P6 shows 1. A dry green leafy substance with seeds, stalks and flowering tops having characteristic odour of “

Cannabis setiva linn” weighs 24 grs. Each in two ( 2) Polythene covers and kept in a card board box and sealed. The identification test for ganja has been conducted. The sample sent in serial Nos. 11027 and 11028 are Ganja.

The learned counsel for both the accused contends that according to the prosecution dried ganja was seized from the possession of accused No.1 and the stems and leaves were seized from the possession of A2, but R.F.S.L. report marked as Ex.P6 is not tallying with the case of the prosecution, with regard to the seizure of property as defined in N.D.P.S. Act.

As per N.D.P.S. Act, the leaves and shelves are not Narcotic substances. As per definition 2 (iii) “Cannabis ( hemp) means:-

b) Ganja, that is, the flowering or fruiting tops of the cannabis plant ( excluding the seeds and leaves when not accompanied by the tops) by whatever name they may be known or designated. In this case it is not established, the contraband from the possession of which accused the ganja or the leaves are seized.

17. The defence counsel for Accused Nos.1 and 2 argued that the sample has to be sent to the RFSL within 72 hours as per Sec.50(6) , but the prosecution did not do so. They further argued that Ex.P1 notice said to have been served on accused is not a valid notice.

He relied on the following judgments in support of his contention.

1) State of Punjab vs. Baldev Singh decided on 21.07.1999 ( Supreme Court of

Indian in Appeal ( Crl.) 396 of 1990, wherein it was observed that, “Failure to observe safeguards, while conducting search and seizure, as provided by Section 50 would render the conviction and sentence of an accused illegal.

It was also discussed in view of the law laid down in Balbir Singh case, we hold that there has been violation of the provisions of Section 50 of the NDPS act and consequently the conviction of appellant cannot be sustained.

13 S.C.No.10 of 2020 1st ADJ Court, Srikakulam, dt. 01.04.2021

So, according to Sec.50 of NDPS Act, issuance of notice under Sec.50 is mandatory provision and it is also observed that failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted

Officer or the Magistrate, would amount to noncompliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial.

The learned counsel for the accused contends that in this case, first of all the notice is not valid on the ground that Ex.P1 is a Xerox copy and the Ex.P1 has no wording that they were informed about the search or about taking them to the gazetted Officer at their option.

The learned Special Public Prosecutor contends that it was orally informed to the accused.

2) In between Vijay sinh Chandubha Jadeja vs. State of Gujarat decided on 29 October, 2010 in Crl. Appeal No.943 of 2005 ( Supreme Court of India) wherein it was observed that ;

A duty casts on the empowered officer to inform the suspect of his right to be searched in the presence of a Gazetted Officer or a

Magistrate, if he so desires or whether a mere enquiry by the said

officer as to the suspect would likely to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said section.

3) In between Gurbax Singh vs. State of Haryana decided on 6 February, 2001 in

Appeal ( Crl.) No.35 of 2000 (Supreme Court of India) wherein it was held that ;

Section 50 of NDPS Act : On its plain reading, section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc.,

Further after considering various decisions held that when an empowered officer or a duly authorized officer acting on prior information is about to search a 14 S.C.No.10 of 2020 1st ADJ Court, Srikakulam, dt. 01.04.2021 person, it is imperative for him to inform the person concerned of his right under Sub

Section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest

Magistrate for making the search. However, such information may not necessarily be

in writing.

18) It is admittedly Ex.P1 is not original and there is no such wording in Ex.P1. As per the evidence of PW6, she orally informed to the accused. None of the witnesses stated that instead of writing the same, the officer authorized under the act informed to the accused orally only. PW6 is an interested person because she is the person who conducted raid. So her evidence alone cannot be taken into consideration. PW6 stated in her cross examination at page No.3 the willingness of the accused was not noted in Ex.P1, but they orally informed about the Gazetted Officer. So that is not sufficient because the strict compliance of Section 50 (1) of NDPS Act is necessary when a provision is made mandatory, the officers authorized have to follow the same and any deviation will amount to contravention of the provisions. In this case, the prosecution failed to establish that they have followed the procedure as required under Sec.50 NDPS Act which is mandatory one for not filing the original copy and also failed to prove the information as to the willingness of the accused.

In view of the material contradictions and omissions noted above and also for latches on the part of the prosecution to follow the mandatory provisions, I hold that the prosecution failed to establish the guilt of the accused beyond all reasonable doubt.

19. In the result, accused Nos.1 and 2 are found not guilty for the offence punishable Under Sec.20(B) (ii)(B) of Narcotic Drugs and Psychotropic Substances

Act, 1985 and that they are acquitted under Sec.235(1) of Cr.P.C. for the said offence. M.Os 1 and 2 shall be destroyed after appeal time is over.

The bail bonds of accused No.1 shall stand cancelled after expiry of Six months as per Sec.437 (A) of Cr.P.C.

15 S.C.No.10 of 2020 1st ADJ Court, Srikakulam, dt. 01.04.2021

Accused No.2 shall be released forthwith if he is not required in any other case/crime.

Dictated to the Stenographer, transcribed by him corrected and pronounced

by me in open court, this the 1st day of April, 2021.

Judge, Family Court-cum- III Additional District

& Sessions Judge, Srikakulam FAC: SPECIAL JUDGE FOR TRIAL OF CASES

UNDER THE NARCOTIC DRUGNS AND

PSYCHOTROPIC SUBSTANCES ACT, 1985 -CUM- 1ST ADDL. DISTRICT & SESSIONS JUDGE,

SRIKAKULAM.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Prosecution: For DEFENCE: NONE

PW1: Yaseen Alibaig, Head constable

PW2: Dr. K.Narayana Murthy, Veterinary Doctor

PW3: Gunapa Narasimha Murthy, Fair Price Shop dealer

PW4: Gudena Trinadha Rao, Village Revenue Officer

PW5: Boddepalli Sanyasi Rao, Villave Revenue Officer.

PW6: B.Lavanya, Sub Inspector of police

PW7: B.Prasada Rao, Inspector of Police

PW8:D.Lalitha, Inspector of police.

DOCUMENTS MARKED

FOR PROSECUTION:

Ex.P1: Xerox copy of served notice

Ex.P2: Mediators report drafted at 15.00 hours.

Ex.P3: Mediators report drafted at 16.00 hours.

Ex.P4: Confessional statement of accused dt.18.5.2019

Ex.P5: Requisition given to PW2

Ex.P6: R.F.S.L. Report

Ex.P7: Inventory proceedings.

16 S.C.No.10 of 2020 1st ADJ Court, Srikakulam, dt. 01.04.2021

MATERIAL OBJECTS

MO1: Dried Ganja

MO2: Leaves.

Sd/- P.Annapurna

Judge, Family Court-cum- III Additional District

& Sessions Judge, Srikakulam FAC: SPECIAL JUDGE FOR TRIAL OF CASES

UNDER THE NARCOTIC DRUGNS AND

PSYCHOTROPIC SUBSTANCES ACT, 1985 -CUM- 1ST ADDL. DISTRICT & SESSIONS JUDGE,

SRIKAKULAM.