IN THE COURT OF THE SPECIAL SESSIONS JUDGE
FOR TRIAL OF CASES UNDER THE NARCOTIC DRUGS
AND PSYCHOTROPIC SUBSTANCES ACT, 1985-CUM-
PRINCIPAL SESSIONS JUDGE AT: MAHABUBABAD
WEDNESDAY, THIS THE FOURTEENTH DAY OF AUGUST, 2024
Present : P. Chandra Sekhara Prasad, Special Sessions Judge for Trial of Cases under the Narcotic Drugs and Psychotropic Substances Act, 1985-cum- Principal Sessions
Judge, Mahabubabad.
SC NDPS No.18 of 2022
1.Name of the ComplainantThe State of Telangana through the Inspector of Police, Gudur, :
2.Name of the Accused : A-1. Bhukya Laxman, S/o Narsimha, Aged about 30years,Lambada, Agriculture, R/o Rallavagu Dasru Thanda, H/o Seetha Nagaram of Gudur Mandal, Mahabubabad District,
A-2. Bhukya Ramu, S/o Venkati, Aged about 37 years, Lambada, Driver, R/oRallavaguDasru Thanda,H/oSeetha Nagaram of Gudur Mandal, Mahabubabad District,
A-3. Boda Suman, S/o Bav Singh, Aged about 30years,Lambada,
Page 2 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
Agriculture, R/o Rallavagu Dasru Thanda, H/o Seetha Nagaram of Gudur Mandal, Mahabubabad District,
A-4. Bhukya Kumar, S/o Chakru, Aged about 24 years, Lambada, Business, R/oRallavaguDasru Thanda,H/oSeetha Nagaram of Gudur Mandal, Mahabubabad District,
A-5. Boda Ravi, S/o Devoji, Aged about 24 years, Lambada, Cell Point, R/oRallavaguDasru Thanda,H/oSeetha Nagaram of Gudur Mandal, Mahabubabad District,
A-6. Tejavath Suresh, S/o Devoji, Aged about 22 years, Lambada, Driver, R/oRallavaguDasru Thanda,H/oSeetha Nagaram of Gudur Mandal, Mahabubabad District,
A-7. Banoth Redya @ Reddy, S/o Sukya, Aged about 42 years,Lambada, Agriculture, R/o Padaharu Chinthal Thanda village of ChennaraopetMandal, Warangal Rural District,
Page 3 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
A-8. Kalluri Kiran, S/o Chinna Pidagaiah, aged about 24 years, Private Job, R/o Kataigudem, Mahadevour Grampanchayath, DummugudemMandal, BhadradriKothagudem District.
3.Offence under Section Section 8 (c) read with Section 20 (b) of the Narcotic Drugs and : Psychotropic Substance Act, 1985,
4.Crime Number and 125 of 2020 Name of Police Station Gudur :
5.Plea of the accused Pleaded Not Guilty :
6.Finding of the Court :A.1 to A.7 found Guilty and A.8 found not guilty.
7.Sentence of Order : IN THE RESULT: A-1 to A-7 are found guilty for the offence punishable under Section 8 (c) read with Section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic Substance Act, 1985.
A-8 is found not guilty for the offence punishable under Section 8 (c) read with Section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic Substance Act, 1985. Accordingly, A-8 is acquitted under Section 235 (1) of Cr.P.C. His bail bonds shall stand cancelled after SIX months. He is set at liberty, forthwith.
Page 4 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
Accordingly, A-1 to A-7 are con- victed and sentenced to undergo RIG- OROUS IMPRISONMENT for a pe- riod of TWENTY YEARS each and to pay fne of Rs.2,00,000/- (RUPEES TWO LAKHS) each and in default of payment of fne they shall un- dergoRIGOROUS IMPRISONMENT for a period of SIX MONTHS each for the offence under Section 8 (c) read with Section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic Substance Act, 1985.
The period of remand already undergone by A-1 to A-7, is ordered to be set off under Section 428 of Cr.P.C.
The police concerned are directed to take the case property, i.e., TATA Indigo car bearing No.AP 11N 5297 forthwith and produce the same
beforetheDrug Disposal
Committee concerned, for disposal of said case property, in accordance with the provisions under Section 52-A of the Narcotic Drugs and Psychotropic Substance Act, 1985, and submit proof of acknowledgment, in the Court, forthwith.
The case property, i.e., samples- 5 (M.O-1-unspent portion returned from FSL) and other samples if any shall be destroyed after expiry of appeal time.
The Ofce is directed, to furnish free copy of the Judgment, to A-1 to A- 7 forthwith, as contemplated under Section 363 Cr.P.C., to enable them, to prefer an appeal, within THIRTY days from today.
Page 5 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
8.Prosecution conducted bySri Ch. Venkateshwarlu, Public Prosecutor, :
9.Defence conducted by Sri D. Ramulu, Advocate for Accused :
This case is coming on 13.08.2024 before me, for fnal hearing in the presence of Sri Ch. Venkateshwarlu, Public Prosecutor for the State; and of Sri D. Ramulu, advocate for the accused; and upon perusal of the material papers on record; and having stood over for consideration till this day, this court delivered the following:
:: J U D G M E N T ::
1.This is a case fled by the Circle-Inspector of Police,
Gudur for the offence punishable under Section 8 (c) read with Section 20 (b) of the Narcotic Drugs and Psychotropic
Substance Act, 1985, against accused.
The case of the prosecution in brief is, as follows:
(i)On 04.08.2020, the Sub-Inspector of Police,
Gudur along with his staff HC-1521, HC-2330, PC-3744 and
PC-454 and TSP force was conducting patrolling duty and when they reached near felds of Bhukya Ramulu,
Page 6 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
Rallavagu Dasru Thanda, they noticed a car and 7 persons with four white bags in suspicious manner. On seeing them, they tried to escape. They chased and caught A-1 to A-6 and A-7 escaped. On enquiry they found that the bags were containing dry ganja.
(ii)On receipt of requisition from the Sub-Inspector, the Tahsildar Gudur came to the scene along with two me- diators. On enquiry, A-1 to A-6 disclosed their identity and confessed their guilt of transporting ganja and that they purchased the ganja from A-8. The contraband of ganja was weighed and it was weighing about 200 Kgs. 4 samples each weighing about 50 grams were drawn from each bags, for analysis. Photographs were also taken. The confessional statements of A-1 to A-6 were recorded and the contraband of ganja, samples and TATA Indigo car bearing No.AP 11N 5297 were seized by afxing panch signed chits under cover of panchanama. Thereafter, the accused, seized con-
Page 7 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
traband of ganja and car were taken to Police Station,
Gudur.
(iii)The Sub-Inspector handed over, the panchanama and case property along with complaint to the Station
House Ofcer, Gudur. On that the Inspector of Police, Dor- nakal, registered the case in Crime No.125 of 2020 under
Section 8 (c) read with Section 20 (b) of the Narcotic Drugs and Psychotropic Substance Act, 1985. During the course of investigation, the Circle Inspector of police, examined the witnesses, visited the scene of offence and prepared Crime
Details Form, in the presence of mediators. Later, he af- fected the arrest of A-1 to A-6 and produced them before the court for judicial remand.
(iv) On 06.08.2020, the Circle Inspector apprehended
A-7 when he was in possession of bag containing two brown colour packet containing 5 Kgs of dry ganja in each packet and that his confessional statement was recorded and
Page 8 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
seized the ganja packets after drawing four samples, under cover of panchanama, in presence of mediators.
(v)Later, the successor Circle Inspector, took up fur- ther investigation, arrested A-8 on 29.09.2020 and recorded his confessional statement. On 07.09.2020, the samples were sent to FSL, Hyderabad, for analysis and the
Scientifc Ofcer analyzed and gave report stating that “items 1 to 5 are found to be 'Ganja’ a Narcotic Drug”.
Hence, the charge.
2.This case was taken on fle, for the offence punishable under Section 8 (c) read with Section 20 (b) of the Narcotic
Drugs and Psychotropic Substance Act, 1985, as SC (NDPS)
No.143 of 202`, against the accused, by the by the I
Additional District and Sessions Judge, Warangal.
3.Later, as per the orders of the Hon’ble High Court for the State of Telangana in ROC No.346/E1/2021 dated 01.06.2022, the case was transferred to this Court, for disposal according to law, in view of formation of new
Page 9 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
Judicial Districts, w.e.f., 02.06.2022 and subsequently, it was renumbered as SC (NDPS) No.18 of 2022.
4.On appearance of the accused, before this Court, they were furnished with the copies of the relevant documents, as contemplated under Section 207 of Cr.P.C.
5.Later, on hearing the learned Special Public Prosecutor and the Defence Counsel, under Section 226 of Cr.P.C. and considering the material on record, as per Section 228 of
Cr.P.C, charge under Section 8 (c) read with Section 20 (b) of the Narcotic Drugs and Psychotropic Substance Act, 1985, against the accused, was framed, read over and explained to them, in Telugu. They pleaded not guilty for the said charges and claimed to be tried.
6.During the course of trial, in support of its case, the prosecution has examined P.Ws-1 to 11 and P-1 to P-15, were exhibited. M.Os-1 to 7 were marked. P.W-1 is the Sub-
Inspector of Police, who detected the ganja, P.Ws-2 and 3
Page 10 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
are the witnesses who weighed ganja, P.W-4 is the mediator for arrest and seizure from A-7, P.W-5 is the mediator for arrest and seizure from A-8, P.W-6 is the mediator for arrest and seizure from A-1 to A-6, P.W-7 is the then Tahsildar,
Gudur, P.W-8 to 10 are the Investigation Ofcers and P.W-11 is the Inspector who produced the property before the
Magistrate for Inventory certifcation as required under
Section 52-A of the Narcotic Drugs and Psychotropic
Substance Act, 1985.
7.After closing the evidence on prosecution side, the ac- cused were examined under Section 313 of Cr.P.C and ex- plained the incriminating evidence found in the evidence of prosecution witnesses. They denied the same and reported no defence witnesses and as such no witnesses were exam- ined and no documents were exhibited.
8.This Court heard the arguments of the leaned Public
Prosecutor and the learned counsel appearing for the accused. In addition, the learned counsel appearing for the
Page 11 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
accused has also fled written submissions.
9.The points that arise for determination are, as follows:
1. Whether A-1 to A-6 were found in
possession of 200 Kgs of ganja with TATA
Indigo car bearing No.AP 11N 5297, on
04.08.2020?
2. Whether 10 Kgs of ganja was seized from
the possession of A-7 on 06.08.2020?
3. Whether the prosecution has proved its
case and established the guilt of the
accused for the ofence punishable under
Section 8 (c) read with Section 20 (b) of
Narcotic Drugs and Psychotropic
Substance Act, 1985, beyond all
reasonable doubt?
10.POINTS 1 AND 2:It is the specifc case of the prosecution that on 04.08.2020, at about 9.30 am, the Sub-
Inspector of Police (P.W-1), Gudur, along with his staff, while conducting patrolling duty at the outskirts of Rallavagu
Dasru Thanda, found A-1 to A-7 with TATA Indigo car bearing No.AP 11N 5297 with 4 white bags and that when they tried to escape, the police chased and caught A-1 to A-
Page 12 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
6 and A-7 escaped from the scene and that they found 42 packets containing 200 Kgs of Dry ganja and that they recorded confessional statements of A-1 to A-6 and seized the contraband, by drawing 16 samples and car by afxing panch signed chits, under cover of panchanama.
11.It is also specifc case of prosecution that on 06.08.2020, the Circle Inspector (P.W-11) apprehended A-7 and seized 2 packets containing 10 Kgs of dry ganja, after drawing 4 samples, under cover of confessional cum- seizure panchanama. Therefore, it is for the prosecution to prove the charge, framed against the accused, beyond all reasonable doubts.
11.The learned Public Prosecutor contends that the evidence of P.Ws-1 and 11 is materially corroborated by the evidence of other prosecution witnesses, on all aspects and that the prosecution has proved seizure of contraband of ganja from the possession of accused under cover of confession-cum-seizure panchanama and as such the
Page 13 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
accused, are liable for punishment.
12.Per contra, the learned counsels appearing for accused contends that P.W-1 and the Investigating Ofcers (P.W-11 and 12) did not follow the mandatory provision under the Narcotic Drugs and Psychotropic Substance Act, 1985 and that search was not conducted properly and that the samples were not drawn as per the procedure and that the prosecution has failed to prove the guilt of the accused, beyond reasonable doubts and as such the accused are entitled for beneft of doubt.
13.It is in the evidence of the then Sub-Inspector of Police (P.W-1), Gudur that on 04.08.2020, while he was conducting patrolling duty along with his staff at Gudur local, he got reliable information that some persons were moving in suspicious circumstances for transporting ganja and immediately, he sent the said information to his superior ofcers, rushed along with staff to Rallavagu Dasru Thanda and that there they found 7 persons in suspicious
Page 14 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
circumstances in the felds of Bhukya Ramulu and that on seeing them the said persons tried to skulk away and that one of the said persons was carrying two brown colour packets and escaped by jumping over canal and that they caught six persons and that the accused are the said persons.
14.It is in the evidence of P.W-1 that there was one car and 4 plastic bags at the scene of offence, found ganja smell from the bags and immediately, he sent requisition to
Tahsildar, Gudur and that on receipt of his requisition,
Tahsildar (P.W-7) along with two mediators (P.W-6 and
Gangineni Uppalaiah) came to the scene and that on enquiry, A-1 to A-6 confessed their guilt of transporting ganja and that they found 10 packets in each bag (total 40 packets).
15.P.W-1 deposes that 1st bag containing 10 packets belonging to A-1 was weighing about 5 Kgs and likewise the remaining bags containing 10 packets weighing about 5
Page 15 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
Kgs each and that they have also drawn the samples as collected from the 1st bag and in total he has collected 16 samples from four bags and that he seized a contraband and samples under cover of confession-cum-seizure panchanama by afxing signed chits. Ex.P-1 to P-4 are the relevant portions in confession-cum-seizure panchanama of
A-1 to A-4 respectively and that he seized TATA Indigo car bearing No.AP 11N 5297 (M.O-5) belong to A-5 under cover of confession-cum-seizure panchanama (Ex.P-5) and that he has recorded separate confession panchanama for A-6.
M.Os-1 to 4 are samples (loose ganja of unspent portion returned from FSL).
16.P.W-1 categorically stated that after reading over the contents of panchanama to the mediators, they all signed on panchanamas. The evidence of the then VRO of
Ayodhyapuram (P.W-6) and the then Tahsildar (P.W-7)
Gudur, is also corroborated the testimony of P.W-1 on all material aspects.
Page 16 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
17.The evidence of P.Ws-1 and 9 reveals that on 06.08.2020, at about 2.00 pm, they apprehended A-7 who escaped on the date of detection when he was in possession of two packets of ganja and when he was waiting near ofce of MRO Gudur and that immediately on his requisition, Tahsildar Gudur (P.W-5) along with two mediators (P.W-4 and Gangineni Uppalaiah), came to the scene and recorded his confessional statement and found 2 packets containing ganja weighing about 5 Kgs each and that they have drawn 4 samples from two packets, weighing about 50 grams and that they seized the contraband by afxing signed chits of the mediators under cover of confession-cum-seizure panchanama (Ex.P-8).
M.O-6 is the unspent portion of the sample returned from
FSL. He deposes that later, he handed over A-7 along with seized contraband of ganja and seized samples to our
Circle-Inspector (P.W-9) for taking further action.
Page 17 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
18.According to prosecution, P.Ws-2 and 3 are the witnesses who weighed ganja on 04.08.2020 and 06.08.2020. But both of them have turned hostile. P.W-1 deposes that Photographs were also taken and it was also covered with Videography. Ex.P-6 is photograph with CD (for arrest and seizure of A-1 to A-6) and Ex.P-9 is the photographs-3 with CD (for seizure and arrest of A-7). Even though the photographer was not examined and P.Ws. 2 and 3 did not support the case of prosecution, there is nothing to disbelieve the testimony of P.W-1.
19.The learned counsels appearing for the accused contends that P.W-1 did not fle proof to show that they were on patrolling duty. It is general and routine duty of the police to conduct patrolling duty at their respective station limits. Simply because, no GD entry was fled, it cannot be taken for granted that P.W-1 was not on patrolling duty along with staff at the time of detection of ganja.
Page 18 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
20.The learned counsels appearing for the accused contends that no independent witnesses were summoned from that locality to act as mediators and that the evidence of P.W-1 cannot be taken into consideration without corroboration by independent witnesses. But there is no cross-examination regarding independent witnesses.
21.It is well settled law that generally the public at large are reluctant to come forward to depose before the Court and therefore, the prosecution case cannot be doubted for non-examination of the independent witnesses as held in
State of UP V. Anil Singh1.
22.In Kashmiri Lal V. State of Haryana2it was held that; “If testimony of police ofcer is found to reliable and trustworthy, court can defnitely act upon same – There is no absolute command of law that police ofcers cannot be cited as witnesses and their testimony should always be treated with suspicion–Ordinarily, public at large show their disinclination to come forward to become witnesses – Seizure bad taken place from tool box of scooter belonging to appellant – When a vehicle is searched and not person of accused – Section 50 is not attracted – As appeal was 1 1988 Supp SCC 686 2 (2013) 6 SCC 595
Page 19 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
pending in 1996, ameliorative provision brought by way of amendment in year 2001 would not be applicable to accused-appellant – Appeal dismissed”.
23.Considering the facts and circumstances of the case and citations referred supra, this Court fnds no force in the contention of the accused. Furthermore, the evidence of
P.Ws-1, 4 to 11 is consistent and corroborated with each other on all material aspects.
24.The learned counsels appearing for the accused con- tends that no independent witnesses were summoned to act as mediators as required under Section 100 (4) of
Cr.P.C, for the alleged arrest and seizure of contraband and that the evidence of revenue ofcials (P.Ws-4, 6 and 7) can- not be taken into consideration.
25.Absolutely there is nothing to show that P.Ws-4, 6 and 7 are interested in prosecution. Simply because, the media- tors were summoned from other place, it cannot be said that their evidence is doubtful, as there is nothing to show
Page 20 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
that they are interested in prosecution and to show as to how it caused prejudiced to the accused.
26In Hari Obula Reddy and others V. State of
Andhra Pradesh3 it was held:
“It is well settled that interested evidence is not necessarilyunreliable evidence.Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence; can never form the basis for conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may by itself be sufcient in the circumstances of the particular case to base a conviction thereon”.
27.In view of the ratio laid down in the citation referred supra, it is to be concluded that the evidence of interested witnesses cannot be discarded merely because no independent witnesses were secured by the detecting ofcer (P.W-1) at the scene of offence, at the time of search 3 1981(3) SCC 675
Page 21 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
and seizure of car and contraband of ganja. Further, there is no need for P.Ws-4, 6, and 7, who are the revenue ofcials, to act as per the whims and fancies of the police ofcials. Hence, they cannot be considered as interested witnesses or partisan witnesses, since they are working in
Revenue Department and not under the police department.
In such circumstances, there is no force in the contention of the learned counsels appearing for the accused. Added to it, there is nothing to say that the search and seizure made by P.W-1 is illegal.
28.The learned counsels for the accused contend that extract of Malkhana Register is not produced by the prosecution and as such the same is fatal to the case of prosecution. He has placed reliance in case of Pooran Singh
V. State of Uttarakhand reported in 2013 0 Supreme (UK) 461, wherein it was held that:
“In absence of malkhana register, it could not be said as to whether contraband and sample were deposited in malkhana in intact condition and remained intact and untouched till sample was produced before Court”
Page 22 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
29.There is no dispute regarding proposition of law laid down in the citation referred supra. In the instant case, the accused nowhere disputed that thecontraband and sample were deposited in malkhana are not in intact condition and that they were remained intact and untouched till sample was produced before Court. No question was posed regarding malkhana register to P.Ws-1, 8 to 11. Therefore, simply because the prosecution did not produce the extract
before the court, it cannot be presumed that the contraband
was not kept intact till production of the same before the
Magistrate. In the absence of any cross-examination, this
Court is not inclined to accept the said contention of the learned counsel appearing for the accused. Therefore, the citation on which he placed reliance did not render any help the accused.
30.Even though P.Ws-1, 4, 6 and 7 were examined in cross, nothing has been elicited to impeach their testimony regarding confession of accused and seizure of contraband
Page 23 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
of ganja and car. Their evidence is trustworthy and inspires the confdence of the Court.
31.According to P.W-1, on return to police station, he handed over A-1 to A-6, seized contraband of ganja, the samples and the Car to the Station House Ofcer along with report (Ex.P-7), for taking necessary action. P.W-8 corrobo- rated the same and on that he registered the case in Crime
No.125 of 2020 under Sections 8 (c) read with Section 20
(b) of the Narcotic Drugs and Psychotropic Substance Act, 1985, which is evident by the First Information Report (Ex.P-11).
32.Later, the Circle Inspector (P.W-9) took up further in- vestigation from P.W-8, examined the witnesses, visited the scene of offence, observed the scene of offence and pre- pared Crime Details Form in the presence of mediators (P.W-6 and Gangineni Uppalaiah) Kala Amul Kumar Jain), which is evident by the Crime Details Form (Ex.P-12) and the same is also corroborated by P.W-4.
Page 24 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
33.It is in the evidence of P.W-9 that the samples were sent to FSL, Hyderabad for analysis through the Sub-Divi- sional Police Ofcer. The 3rd Investigation Ofcer (P.W-10) deposes that he collected the report form FSL and that the analyst opined that “items 1 to 5 are analysed and they are found to be “ganja” a narcotic drug, which is evident by FSL report (Ex.P-3).
34.It is in the evidence of P.W-11 that on the instructions of Superintendent of Police, Mahabubabad, he has prepared inventory and fled the same before Additional
Judicial Magistrate of First Class, Mahabubabad along with
case property for certifcation contemplated under Section 52-A of the Narcotic Drugs and Psychotropic Substance Act, 1985 and that on 16.12.2023, Additional Judicial Magistrate of First Class, Mahabubabad certifed the inventory under cover of photography, which is evident by inventory certifcate (Ex.A-14) along with Annexure-I & II and photographs-42 with Compact Disc (Ex.P-15).
Page 25 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
35.The learned counsel appearing for the accused con- tends that there is delay in production of case property be- fore the Magistrate for inventory certifcation as contem- plated under Section 52-A of the Narcotic Drugs and Psy- chotropic Substance Act, 1985 and that the same is fatal to the case of prosecution.
36.There is no dispute that the contraband of ganja was seized on 04.08.2020 and on 06.08.2020 and that on 16.12.2023, the contraband of ganja was produced before the Magistrate for inventory certifcation as contemplated under Section 52-A of the Narcotic Drugs and Psychotropic
Substance Act, 1985 and that the Investigation ofcer did not follow the rules dated 23.12.2022 framed by the Cen- tral Government. There is admitted delay of 3 years in pro- duction of case property before the Magistrate for inventory certifcation.
Page 26 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
37.In fact there is no cross-examination regarding the de- lay in production of case property before the Magistrate for inventory certifcation. If there is any tampering in the seals of the packets, the Magistrate would have not certifed its correctness. Therefore, this Court fnds no force, in the con- tention of the learned counsel appearing for the accused.
38. It is pertinent to note that Section 52A of the Narcotic
Drugs and Psychotropic Substance Act, 1985 was added by 1989 Amending Act with effect from 29.05.1989. Section 52
A of the Narcotic Drugs and Psychotropic Substance Act, 1985 provides as under:
"52A. Disposal of seized narcotic drugs and psychotropic substances.- (1)The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notifcation published in the Ofcial Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such ofcer and in such manner as that Government may from time to time, determine after following the procedure hereinafter specifed.
Page 27 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
(2)Where any narcotic drug or psychotropic substance has been seized and forwarded to the ofcer-in-charge of the nearest police station or to the ofcer empowered under section 53, the ofcer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the ofcer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of—
(a)certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.
(3)Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.
(4)Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub- section (2) and certifed by the Magistrate, as primary evidence in respect of such offencee."
Page 28 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
39.It is pertinent to note that the language of the afore- said provision signifes its applicability with regard to dis- posal of seized drugs, i.e., at a stage after recovery and seizure. It is pertinent to point out that the Standing Order
No.1/88, dated 15.03.1988 was issued by the department under the provisions of Section 52 of the Narcotic Drugs and Psychotropic Substance Act, 1985. In exercise of pow- ers conferred by Section 52-A(1) of the Narcotic Drugs and
Psychotropic Substance Act, 1985, Government of India,
Ministry of Finance, Department of Revenue issued a
Standing Order No.1/1989 dated 13.06.1989 and again no- tifcation No.GSR. 38 (E) was issued on 16.01.2015.
40.Subsequently, in exercise of powers conferred by Sec- tion 76 read with Section 52A of the Narcotic Drugs and
Psychotropic Substance Act, 1985, Government of India,
Ministry of Finance, Department of Revenue, has issued an- other notifcation dated 23.12.2022. So far as the notifca-
Page 29 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
tion dated 23.12.2022 is concerned, the same has been is- sued under the powers conferred by Section 76 read with Section 52A of the Narcotic Drugs and Psychotropic
Substance Act, 1985. The Rules dated 23.12.2022 would be applicable both in the case of sampling and thereafter dis- posal of the seized narcotic drugs. However, with regard to sampling of the contraband in the present case, the same was seized on 04.08.2020 and therefore, the rules dated 23.12.2022 would not be applicable in the facts of this case.
41.Admittedly, the Magistrate who collected the sample at the time of Inventory Certifcation was not examined. If at all there is challenge or any prejudice to the accused, they ought to have taken steps to summon the Magistrate to cross-examine him, regarding certifcation of inventory.
P.W-11 denied the suggestion that the property seized and the property produced before the Magistrate is not one and the same. Except vague suggestion, nothing has been
Page 30 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
placed by the accused, to substantiate the said contention.
Added to it, it is not the case of the accused that the seized contraband of ganja was tampered and that the same was not produced intact condition before the Magistrate for inventory certifcation. A mere irregularity committed by the Investigation Ofcers in production of case property
before the Magistrate for inventory certifcation does not
vitiate the trial, more particularly, when the accused has failed to show as how and in what manner it caused prejudice to them. Mere delay for production of case property before the Magistrate for inventory certifcation is not fatal to the case of prosecution.
42.Ex.P-11 is the Chemical Analyst report, it shows the analyst opined that the items 1 to 5 were analysed and are found to be ‘ganja’ a Narcotic Drug. The said report is also ample support to the case of the prosecution to establish that the seized contraband from possession of accused is ‘ganja’ a Narcotic Drug.
Page 31 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
43.The learned counsel appearing for the accused contends that A-1 to A-6 were not given option to search in the presence of Magistrate of Gazetted Ofcer. He has placed reliance on a citation of Ved Singh and others V.
State of Rajasthan4 where in it was held that non- compliance of Section 50, 55 and 57 thereby in effecting search.
44.There is no dispute regarding proposition of law laid down in the citation referred supra. In the case on hand, it is not the case falling under Section 50 and it is a case falling under Section 43 of the Narcotic Drugs and
Psychotropic Substance Act, 1985. While conducting patrolling duty, P.W-1 caught A-1 to A-6, when they were in possession of four white bags containing 40 packets with ganja and as such the citation referred supra is not applicable to the case on hand.
4 2002 Crl.L .J 1463
Page 32 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
45.The learned counsel appearing for the accused also relied upon the following citations:
1. Bhulan Das @ Bhulan Ravidas reported in 2018 1 Crime (HC) 468; wherein it was held that “non- production of material object before the Court is not mere procedural irregularity rather a best evidence to produce that alleged quantity of contraband was seized from the possession of the accused”.
2. Mahendra Kumar V. State of Madhya Pradesh reported in 2013 0 Crl. L.J 747; wherein it was held that “property not produced before the court during trial and as such there is violation of Section 52-A of the Narcotic Drugs and Psychotropic Substance Act, 1985, which is mandatory in nature”.
3. Haniph Seikh V. State of West Bengal reported in 2015 (1) Acquittal 698 (Cal); wherein it was held that “Section 52-A of the Narcotic Drugs and Psychotropic Substance Act, 1985, which is mandatory in nature”.
4. Yousuf alias Asit V. State reported in AIR 2023 Supreme Court 5041; wherein it was held that “There was no material to prove that Magistrate had certifed inventory of substance seized or of list of samples so drawn. Hence, said seized contraband and samples drawn there from would not be a valid piece of primary evidence in trial.”
46.There is no dispute regarding the proposition of law laid down in the above citations. This court fnds the citations referred to supra have no manner of application to the case on hand. In the instant case, on production of case
Page 33 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
property by P.W-11, the Additional Judicial Magistrate of
First Class, Mahabubabad certifed the inventory which is
evident by Ex.P-14 and 15. However, there is delay in production of case property before the Magistrate for inventory certifcate. It cannot be said that the
Investigation ofcer did not follow the provision under
Section 52-A of the Narcotic Drugs and Psychotropic
Substance Act, 1985.
47.The learned counsel appearing for the accused contends that delay in sending samples to FSL for analysis is fatal to the case of prosecution. He has placed reliance on the following citations:
1. Bantapally Durga Rao V. State of AP reported in 2004 0 Supreme (AP) 1233 (delay in sending samples for analysis);
2. Nathiya and another V. State of Rajasthan reported in 1992 Crl. L.J 2342; (specimen seal of seal with which the same was sealed not sent and report of the Laboratory becomes doubtful)
48.Absolutely there is no dispute with regard to proposi- tion of law laid down in the citations referred supra on
Page 34 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
which the learned counsel appearing for accused placed re- liance. But, the facts of the present case are quite different and as such the said citations did not render any help to the accused.
49.As seen from analyst report (Ex.P-13) the samples were received under letter in reference No.227SDM/2020
dated 25.08.2020. According to prosecution the samples
were drawn on 04.08.2020 from the contraband seized from A-1 to A-6 and on 06.08.2020 from the contraband seized from A-7. The analyst specifcally mentioned in Ex.P- 13 that “received fve cloth covers each sealed with one seal, which is intact and tallying with the sample seal, each labeled as “Cr.No.125/2020 of Gudur PS Mahabubabad Dis- trict afxed with panch chit” as described below through Sri
P. Nageshwar Rao, HC-2283” on 07.09.2020.” If really, there is any tamper in seals of the packets, the analyst would have not received the samples for analysis.
Page 35 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
50.No specifc suggestion was posed to the Investigation
Ofcer (P.W-10) that the samples were tampered. It is not the case of the accused that the seized contraband was not sealed and preserved properly by the investigation agency.
No suggestion was posed to the Investigation Ofcers that the samples of the seized contraband was not kept in proper custody and seals were tampered. Therefore, the delay would not affect the case of prosecution and it caused prejudice to the accused.
51.The Hon’ble Supreme Court in Mohan Lal V. State of
Rajasthan5, wherein it was held that “the delay in sending samples of seized contraband articles to Forensic Science
Laboratory is inconsequential when seal was found in tact till date of receipt of sealed packets of samples by Chemi- cal Examiner”. Since, it is apparent that the contraband was sealed and the same was sent to analyst, there is noth- ing to disbelieve the case of prosecution.
5 (2015) 6 SCC 222
Page 36 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
52.As seen from the charge sheet, A-6 is the driver of the
Vehicle bearing No.AP11N 5297. According to the prosecu- tion, A-7 was also found along with the remaining accused when they were in possession of ganja. As held by the
Hon’ble Supreme Court in Madan Lal Vs. State of
H.P.6 that; “Once possession is established, burden is on accused to prove that it was not a conscious possession. All accused along with driver were convicted”.
53.It is in the evidence of P.W-10 that on 29.09.2021 he arrested A-8. P.W-5 who is the mediator for confession of A- 5 is also corroborated the testimony of P.w-10. Even the evidence of Investigating Ofcer (P.W-1) and mediator (P.w-
5) with regard to arrest of A-8 is taken into consideration, except inadmissible confession, nothing has been placed by the prosecution to show that A-8 sold the seized contraband of ganja to A-1 to A-7 and as such A-8 is entitled for beneft of doubt.
6 (2003) 7 SCC 465.
Page 37 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
54.On scanning the material on record, this Court has no hesitation to conclude that the prosecution has established its case, beyond reasonable doubt that A-1 to A-7, who were in possession of 210 Kgs of ganja and as per the provisions of Section 54 of the Narcotic Drugs and
Psychotropic Substance Act, 1985, it may be presumed unless and until the contrary is proved that A-1 to A-7, have committed an offence under this Act, in respect of Narcotic
Drug for the possession of which they fail to account satisfactorily. Once possession is established, the burden is on A-1 to A-7 to prove that it was not a conscious possession. Therefore, A-1 to A-7 liable for conviction as held in Madan Lal V. State of HP.
55.It is clearly established that the contraband of ganja weighing about 210 Kgs was found in possession of A-1 to
A-7, but A-1 to A-7 miserably failed to prove that they are no way concerned with contraband of ganja. They did not offer any explanation for the same. A-1 to A-7 have failed to
Page 38 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
rebut the above said presumption and therefore, charge under Section 8 (c) read with Section 20 (b) of the Narcotic
Drugs and Psychotropic Substance Act, 1985, is established, against A-1 to A-7, beyond all reasonable doubts. Accordingly, this point is answered.
56. POINT No.2:For the foregoing reasons, this Court has no hesitation to come to conclusion that the prosecution has clearly established the guilt of A-1 to A-7 for the offence punishable under Section 8 (c) read with Section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic Substance Act, 1985, beyond all reasonable doubt.
But, the prosecution has failed to establish the guilt of
A-8, for the offence for the offence punishable under Section 8 (c) read with Section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic Substance Act, 1985, beyond all reasonable doubts. Accordingly, this point is answered.
IN THE RESULT:A-1 to A-7 are found guilty for the offence punishable under Section 8 (c) read with Section 20
Page 39 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
(b) (ii) (C) of the Narcotic Drugs and Psychotropic Substance
Act, 1985.
A-8 is found not guilty for the offence punishable under
Section 8 (c) read with Section 20 (b) (ii) (C) of the Narcotic
Drugs and Psychotropic Substance Act, 1985. Accordingly,
A-8 is acquitted under Section 235 (1) of Cr.P.C. His bail bonds shall stand cancelled after SIX months. He is set at liberty, forthwith.
Considering the nature of offence, this Court is of the view that it is not a ft case to invoke the provisions of
Probation of Offenders Act, 1958. Therefore, A-1 to A-7 convicted under Section 235 (2) of Cr.P.C., for the offence punishable under Section 8 (c) read with Section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic Substance Act, 1985.
Typed to my dictation, corrected and pronounced by me in the open court on this the 14th day of August, 2024.
Special Sessions Judge for Trial of Cases under the Narcotic Drugs and Psychotropic Substances Act, 1985-cum-
Principal Sessions Judge
Mahabubabad
Page 40 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
::QUANTUM OF SENTENCE::
A-1 to A-7, having found guilty for the offence punish- able under Section 8 (c) read with Section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic Substance Act, 1985, questioned with regard to the proposed quantum of sen- tence.
A-1 pleaded that he is having four small children and his mother expired recently and his father is suffering with paralysis.
A-2 pleaded that he has nothing to say.
A-3 pleaded that he is having children and his father died.
A-4 pleaded that after registration of this case, his wife went away and returned back six months back and he is having two female children.
A-5 pleaded that he is having two small children and that his mother is depending on him.
Page 41 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
A-6 pleaded that his mother is not feeling well and his father is a drunkard. He has to look after the welfare of his children and mother.
A-7 pleaded that he is having two daughters. He has to perform the marriage of his elder daughter and that he is residing by doing agriculture.
A.1 to A.7 prayed to take lenient view.
Regarding quantum of sentence, the Hon’ble Supreme
Court in State of Karnataka V. Krishnappa7,observed that:
“the courts must hear the loud cry for justice by society and respond to impose proper sentence. Public abhorrence of the crime needs refection through imposition of appropriate sentence by the courts.”
In Ravinder Singh V. State of Haryana8, the
Hon’ble Supreme Court held as under:
“11. The question of sentence is always a difcult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of 7 AIR 2000 1470 SC 8 (2015) 11 SCC 588
Page 42 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
circumstances aggravating and mitigating in the individual cases. The law courts have been consistent in the approach that a reasonable proportion has to be maintained between the seriousness of the crime and the punishment. While it is true that a sentence disproportionately severe should not be passed that does not clothe the court with an option to award the sentence manifestly inadequate. Justice demands that courts should impose punishment beftting the crime so that the courts refect public abhorrence of the crime.”
In State of Jammu & Kashmir V. Vinay Nanda9, the Hon’ble Supreme Court held that:
“Where the mandate of law is clear and unambiguous, the Court has no option but to pass the sentence upon conviction as provided under the statute........ The mit- igating circumstances in a case, if established, would authorise the Court to pass such sentence of imprison- ment or fne which may be deemed to be reasonable but not less than the minimum prescribed under an enactment”.
In the case of State of Rajasthan V. Mohan Lal10, the Hon’ble Supreme Court held that:
“From the aforementioned observations, it is clear that the principle governing the imposition of punishment will depend upon the facts and circumstances of each case.
9 AIR 2001 SC 611 10 2018 (3) ALT (Crl.) 56
Page 43 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
However, the sentence should be appropriate, adequate, just, proportionate and commensurate with the nature and gravity of the crime and the manner in which the crime is committed. The gravity of the crime, motive for the crime, nature of the crime and all other attending circumstances have to be borne in mind while imposing the sentence. The Court cannot afford to be casual while imposing the sentence, inasmuch as both the crime and the criminal are equally important in the sentencing process. The Courts must see that the public does not lose confdence in the judicial system. Imposing inadequate sentences will do more harm to the justice system and may lead to a state where the victim loses confdence in the judicial system and resorts to private vengeance.’’
In the instant case on hand, A-1 to A-7 are found guilty for the offence under Section 8 (c) read with Section 20 (b)
(ii) (C) of the Narcotic Drugs and Psychotropic Substance
Act, 1985 as they were found in possession of 200 Kgs of ganja which is of commercial quantity, while transporting the same by keeping the packets beneath the tractor trolley and that the prosecution has proved the guilt of the accused, beyond reasonable doubt, for the charge framed against them.
Taking the facts and circumstances of the case on
Page 44 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
hand and in view of the citations referred supra, this Court has to award proper sentence after considering the aggravating and mitigating factors, in a dispassionate manner. The Court will be failing in its duty, if proper punishment is not awarded, for a crime, which has been committed, against the society at large. As per the record, there are no earlier convictions recorded against A-1 to A-7.
Accordingly, A-1 to A-7 are convicted and sentenced to undergo RIGOROUS IMPRISONMENT for a period of TWENTY YEARS each and to pay fne of Rs.2,00,000/- (RUPEES TWO LAKHS) each and in default of payment of fne they shall undergo RIGOROUS IMPRISONMENT for a period of SIX MONTHS each for the offence under Section 8 (c) read with Section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic Substance Act, 1985.
Page 45 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
A-1 to A-6 were arrested on 04.08.2020 and they were produced before the Magistrate on 05.08.2020. A-7 was arrested on 06.08.2020 and he was produced before the
Magistrate on the same day. Later, on 18.11.2020, A-1 to A-
6 were released on bail. A-7 was released on bail on 27.10.2020. Subsequently, A-2 was remanded to judicial custody on execution of NBW on 31.10.2023 and since then he is in judicial remand till today. The period of remand already undergone by A-1 to A-7, is ordered to be set off under Section 428 of Cr.P.C.
The police concerned are directed to take the case property, i.e., TATA Indigo car bearing No.AP 11N 5297 forthwith and produce the same before the Drug Disposal
Committee concerned, for disposal of said case property, in accordance with the provisions under Section 52-A ofthe
Narcotic Drugs and Psychotropic Substance Act, 1985, and submit proof of acknowledgment, in the Court, forthwith.
Page 46 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
The case property, i.e., samples-5 (M.O-1-unspent portion returned from FSL) and other samples if any shall be destroyed after expiry of appeal time.
The Ofce is directed, to furnish free copy of the
Judgment, to A-1 to A-7 forthwith, as contemplated under
Section 363 Cr.P.C., to enable them, to prefer an appeal, within THIRTY days from today.
Typed to my dictation, corrected and pronounced by me in the open court on this the 14th day of August, 2024.
Special Sessions Judge for Trial of Cases under the Narcotic Drugs and Psychotropic Substances Act, 1985-cum-
Principal Sessions Judge
Mahabubabad
:: APPENDIX OF EVIDENCE ::
WITNESSES EXAMINED ON BEHALF OF PROSECUTION
P.W-1Sk. Yaseen19.03.2024 P.W-2Celpuri Raju21.03.2024 P.W-3Mydam Babu21.03.2024 P.W-4Mannuri Pattabi22.03.2024 P.W-5M. Narender22.03.2024 P.W-6Degala Ramesh Yadav26.03.2024 P.W-7J. Shailaja26.03.2024
Page 47 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
P.W-8Ch. Sambaiah10.04.2024 P.W-9B. Balaji10.04.2024 P.W-10Ch. Raji Reddy10.04.2024 P.W-11K. Phanindhar28.06.2024
WITNESSES EXAMINED ON BEHALF OF DEFENCE
-Nil-
DOCUMENTS EXHIBITED ON BEHALF OF PROSECUTION
Ex.P-1Relevant portion of Confession-cum-Seizure04.08.2020 panchanama of A-1
Ex.P-2Relevant portion of Confession-cum-Seizure04.08.2020 panchanama of A-2
Ex.P-3Relevant portion of Confession-cum-Seizure04.08.2020 panchanama of A-3
Ex.P-4Relevant portion of Confession-cum-Seizure04.08.2020 panchanama of A-4
Ex.P-5Relevant portion of Confession-cum-Seizure04.08.2020 panchanama of A-5
Ex.P-6Photograph with Compact Disc-
Ex.P-7Report 04.08.2020
Ex.P-8Relevant portion of Confession-cum-Seizure06.08.2020 panchanama of A-7
Ex.P-9Photographs-3 with CD -
Ex.P-10Rough sketch04.08.2020
Ex.P-11First Information Report04.08.2020
Ex.P-12Crime Details Form04.08.2020
Ex.P-13Forensic Science Laboratory report 11.11.2020
Ex.P-14Inventory certifcate along with Annexure- I &16.12.2023 II Ex.P-15Photographs-42
Page 48 of 48
SC NDPS No.18 of 2022
Dated 14th day of August, 2024
DOCUMENTS EXHIBITED ON BEHALF OF DEFENCE
-Nil-
DOCUMENTS EXHIBITED ON BEHALF OF PROSECUTION
M.O-1Sample (unspent portion returned from FSL)-
M.O-2Sample (unspent portion returned from FSL)-
M.O-3Sample (unspent portion returned from FSL)-
M.O-4Sample (unspent portion returned from FSL)-
M.O-5Indigo Car bearing No.AP 11N 5297
M.O-6Sample (unspent portion returned from FSL)-
M.O-7Sample (unspent portion returned from FSL)-
Special Sessions Judge for Trial of Cases under the Narcotic Drugs and Psychotropic Substances Act, 1985-cum-
Principal Sessions Judge
Mahabubabad