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IN THE COURT OF THE METROPOLITAN SESSIONS JUDGE
VIJAYAWADA
Present: Sri R.Niranjan, Metropolitan Sessions Judge.
Tuesday, this the 15th day of May, 2017
SESSIONS CASE NO.190/2012
(Crime No.488/2010 of Machavaram Police Station, Vijayawada City)
COMPLAINANT :The State, Sub-Inspector of Police,
Machavaram Police Station, Vijayawada City. NAME OF THE ACCUSED:
A1. Tangella Papa Rao, S/o Atchaiah, 46 years, caste by Rajaka,
Sanjeevaiah Colony, Arandalpet, Vijayawada.
A2. Kandagatla Nagamani, W/o Venkateswara Rao, 53 years, Rajaka,
Sanjeevaiah Colony, Arandalpet, Vijayawada.
A3.Kandagatla Sujatha, D/o Venkateswara Rao, 28 years, Rajaka, Sanjeevaiah Colony, Arandalpet, Vijayawada.(Died & abated)
A4.Muttureddy Sarojini, W/o Ramu, 45 years, kapu, Santhinagar, Payakapuram, Vijayawada.
A5.Chintati Ramana, W/o Yesu, 40 years, Madiga, Baavisettyvari Pet, Eluru Town, West Godavari District.
A6.Korakula Laxmaiah @ Chinna, S/o Veeraiah, 60 years, Kapu, D.No.77-13-37, Santhinagar, Payakapuram, Vijayawada.
A7.Madidboyina Malleswara Rao @ Mallesh, S/o Venkata Swamy, 55 years, Mala, Tarakaramanagar, Raanigarithota, Krishnalanka, Vijayawada.(Died & abated)
A8.Chadala Krishna, S/o Laxmaiah, 50 years, Erukala, K.L.Rao Colony, Sitanagaram, Undavalli Center, D.No.13/560, Tadepalli Mandalam, Guntur District.
A9. Chadala Panduranga Rao, S/o Krishna, 21 years, Erukala, D.No.13/50, K.L.Rao Colony, Sitanagaram, Tadepalli Mandalam, Krishna District.(Died & abated)
A10.Mohammed Aleem, S/o Yasin, 20 years, Muslim, APPIC Colony, EWS 164, Autonagar, Vijayawada.
A11. Tangella Hari Krishna, S/o Atchaiah, 30 years, D.No.28-3/2-40, Sanjeevaiah Colony, Arundalpet, Vijayawada.
A12. Kurakula Durga, W/o Lakshmaiah, Kapu, 60 years, Santhi Nagar, Pipula Road, Singhnagar, Vijayawada.
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OFFENCE CHARGED: U/s. 8 (c) r/w. 20 (b) and 21of NDPS Act.
PLEA OF THE ACCUSED:Found not guilty
FINDING OF THE COURT & SENTENCE ORDER
In the result, the prosecution failed to prove the guilt of the accused for the charges u/s 8 (c) r/w 20 (b)(ii)(B) and 8 (c) r/w 21 of NDPS Act and they are entitled to acquittal u/s 235 (i) Cr.P.C. Their bail bonds shall stand canceled. M.Os.1, 2, and M.Os.10 to 14 are ordered to be confiscated to State. M.Os.3 to 9 are ordered to be destroyed as per rules after the appeal time is over.
This Sessions Case coming for final hearing before me in the presence Sri G Bulliah for A1, A2, A5, A8 & A11, Sri Ch.Satyanarayana for A4, A6 & A12, Sri Ch.Bhanu Prasad for A10 and of Spl. Public Prosecutor for the State upon perusing the oral and documentary evidence on record and heard arguments on both sides, and the matter having stood over till this day for consideration, this court delivered the following:-
JUDGMENT
The Inspector of Police, Machavaram P.S., Vijayawada representing the State laid the charge sheet against 12 accused for the offences u/s 8 (c) r/w 20 (b) and 21 of NDPS Act with the accusation that all the accused are the residents of Vijayawada engaged in the business of the purchase and sale of ganja and pentwin injections to the innocent students and other public at higher rates to earn huge profits and spoiling the lives of the persons who consume the same.
2)It is the prosecution case that on 20.11.2010, the Inspector of Police, City Task Force, Vijayawada by name K.Govinda Raju L.W.23 on reliable information surprised the 3rd story of the building Door
No.40-2-3B, situate in M.G.Road, by the side of Sobhanachala
Readymade Showroom and by the side of the water tank Vijayawada along with the mediators Mukkapati Srisaila Mallikharjuna Rao L.W.13 and Appikonda Veera Babu L.W.14 and his staff including woman P.C., i.e., L.W.9-K.Rani, L.W.10-Shaik Basha, L.W.11-B.Sudhakar and L.W.12-
J.Prameela Rani and found six persons there smoking cigarettes filled 3 with ganja and on seeing the police party they tried to escape and that the Inspector of Police surrounded them with the assistance of his staff and interrogated separately in the presence of mediators at 14.00 hours. Basing on the confession Statement of those persons (shown as
L.Ws.1 to 6) the Inspector of Police, Task Force along with the staff and mediators apprehended A1 and A2 at Mother Theresa Status
Moghalrajpuram and seized from their possession pentwin injections 250 in numbers and by proceeding to Arundalpet, apprehended A3 to
A5 and seized from them pentwen injections 50 in numbers, a white polythene cover containing 54 packets of ganja weighing 500 gms., and also one green colour hand bag with the letter SD Tailors, containing 1 ½ kg., of ganja and he further proceeded to Priyadarsini
Theatre and apprehended A6 and seized from his possession 1400 gms., of ganja and in continuation arrested A7 to A9 at Bhavani Ghat and seized 2 1/4 kg, of ganja, 2 1/4 kg. of ganja and 25 gms., of ganja respectively and further proceeded to Karimullah Street and apprehended A10 by the side of Sobhanachala Readymades and seized pentwin injections 25 in number and the Inspector of Police, Task Force
Govinda Raju in compliance of Sec.50 of NDPS Act produced A1 to A10
before the Inspector of Police, CCS, Vijayawada by name Sri
P.E.Pavankumar Reddy-L.W.22 for the seizure of ganja and injections etc., and in the presence of mediators above mentioned L.Ws.13 and 14, L.W.22 P.E.Pavan Kumar Reddy seized the ganja and pentwin injections from A1 to A10 and the accused were arrested and that on 20.11.2010 at 21.00 hours L.W.23 Govinda Raju along with his staff reached Machavaram P.S., Vijayawada and produced the accused 1 to 10 before the Inspector of Police, Machavaram P.S.,-L.W.24
N.Satyanandam on the point of jurisdiction and that L.W.24 registered
Cr.No.488/2010 u/s 20 and 21 of NDPS Act, 1985 against A1 to A10 and 4 took up investigation. On 26.11.2010 the Inspector of Police,
Machavaram L.W.24 arrested A12 near Siddhardha Arts College,
Moghalrajpuram, Vijayawada in the presence of mediator L.W.15
Nandeti Rayappa and L.W.16 Natta Prasad and he produced A12 before the Executive Magistrate-cum-Tahsildar L.W.17 where the confession of
A12 was recorded under the cover of Mahazar in the presence of mediators L.Ws.15 and 16 and seized the contraband from her under the cover of mahazar. The investigation officer L.W.24 sent the sample packets for chemical examination to the expert of FSL, Hyderabad and on receipt of the opinion that the samples are ganja and sedative injections he laid the charge sheet mentioning that all the accused have committed the offence u/s 8 (c) r/w 20 (b) of NDPS Act. It is further contended that A11 was enlarged on bail.
3)Based on the allegations in the charge sheet and the connected case record this court took cognizance for the offences u/s 8 (c) r/w 20 (b) (ii)(B) of NDPS Act and also under Section 21 of NDPS
Act by taking the charge sheet on file as SC.190/2012. On the appearance of the accused, copies of the case documents were furnished to them and A7 while appearing before this court on receipt of summons died and the case against him was abated. On hearing both sides and based on the material on record, this court framed charges u/s 8 (c) r/w 20 (b)(ii)(B) of NDPS Act against A3 to A6, A8, A9 and A12 and the charge u/s 8 (c) r/w 21 of NDPS Act against A1, A2,
A3, A10 and A11, the charges were read-over to the accused, explained to them in Telugu and the accused having understood the charges pleaded not guilty and claimed to be tried.
4)It is also pertinent to mention here while the case was coming for summoning the witnesses A3 also died and case against was also abated. During the trial A9 died and case against him is 5 abated.
5)To prove the above said charges against the accused the prosecution examined altogether 15 witnesses as P.Ws.1 to 16 and exhibited Exs.P1 to P23 and M.O.1 to 14, the details of which are given in the appendix to the judgment.
6)After completion of the prosecution side all the accused were examined u/s 313 Cr.P.C., putting forth the incriminating material against them adduced by the prosecution and the accused though disputed the correctness of such evidence did not adduce any defence evidence.
7)Heard both sides.
8)Now the points that arise for determination are:- (1) Whether the prosecution succeeded in establishing the guilt of the accused i.e., A4 to A6, A8, A9 and A12 for the charge u/s 8 (c) r/w 20
(b)(ii)(B) of NDPS Act for having possession of ganja?
(2) Whether the prosecution succeeded in establishing the charge against A1, A2, A10 and A11 for the offence u/s 8 (c) r/w 21 of NDPS
Act for the possession of pentwin injections which is a manufactured drug, without any valid permit and licence?
(3) To what relief?
POINT NOS.1 & 2:-
9)As narrated above, the case of the prosecution is that
P.W.13 K.Govinda Raju, Inspector of Police, City Task Force, Vijayawada on 20.11.2010 on reliable information surprised the premises i.e., 3rd story of the building bearing Door No.40-2-3B on the M.G.Road, besides
Sobhanachala Readymade Showroom and found P.Ws.1 to 5 and L.W.1-
Kadiyam Vishal Roshan consuming the cigarettes filled with ganja and he surrounded them and based on their confession in the presence of the mediators L.W.13-Mokkapati Srisaila Mallikharjunarao and L.W.14-
Appikonda Veera Babu proceeded along with those persons to find the 6 persons who supplied ganja to P.Ws.1 to 5 and L.W.1 and he arrested
A1 and A2 at Mother Theresa statue, Moghalrajpuram and seized from them pentwin injections, there from proceeded to Arundalpet and apprehended A3 to A5 and seized from their possession pentwin injections and also ganja packets and further proceeded to Priyadarsini
Theatre and by apprehending A6 seized 400 gms., of ganja and further proceeded and apprehended A7 to A9 at Bhavani Ghat and seized from them the ganja and he proceeded further to Karimullah street and apprehended A10 and seized from him pentwin injections. It is also the prosecution case that the said Inspector Govinda Raju produced A1 to
A10 before the Inspector of Police, CCS, Vijayawada being the Gazetted
Officer and in the presence of the mediators the Inspector of Police,
CCS, Vijayawada P.W.15 P.E.Pavan Kumar Reddy seized the above ganja and pentwin injections from A1 to A10 and that after such seizure
P.W.13 produced all the arrested persons along with the mediator report and seized property before the SHO, Machavaram P.S., and the
Inspector of Police, Machavaram P.S., L.W.23 Satyanandam based on the mediator report registered Cr.No.498/2010 u/s 20 and 21 of NDPS
Act.
10)It is also the prosecution case that the Inspector of Police,
Machavaram N.Satyanandam arrested A12 near Siddhardha Arts
College in the presence of the mediators P.W.6 Nandeti Rayappa and
P.W.7 Matta Prasad and produced her before the Executive Magistrate/
Tahsildar P.W.14 in the capacity of the Gazetted Officer, who seized from A12 800 gms., of ganja, cash of Rs.7,000/- and a cell phone.
11)The case against A11 is that he is the supplier of pentwin injections to A2 and on anticipatory bail he was directed to surrender
before the SHO and who on such surrender was enlarged on bail.
12)Among the witnesses examined by the prosecution P.Ws.1 7 to 16 only the official witnesses supported the prosecution case and all the remaining non official witnesses completely turned hostile to the prosecution. P.W.1 to P.W.5 i.e., L.Ws.2 to 6 who were found by the
Inspector, Task Force Police, P.W.13-K.Govinda Raju while consuming cigarettes filled with ganja did not support the prosecution case and remained exparte and their 161 Cr.P.C., statements were marked as
Exs.P1 to P5 in cross-examination of those witnesses by the Addl.
Public Prosecutor treating them as hostile witnesses.
13)P.W.6 Nandeti Rayappa is said to be one of the mediators for the apprehension of the A12 while she was in possession of ganja and who is said to be the eye witness for the seizure of ganja by the
Gazetted Officer/Tahsildar from A12 also turned hostile to the prosecution stating that his signatures were obtained in the police station and he does not know the contents of the papers in which his signatures were obtained and his signatures in the mediator report dt.26.11.2010 at 11.00 a.m., and 12.00 a.m., were marked as Exs.P6 and P7 respectively.
14)P.W.7 is also said to be the mediator for apprehension of
A12 and the seizure of ganja and cash from her also turned hostile stating that his signatures were obtained in Machavaram P.S., in those mediator reports and he does not know the contents of the same and he deposes that neither A12 was apprehended in his presence nor any ganja was seized by the Deputy Tahsildar from her in his presence.
15)P.W.8 Ramineni Sudheer who is said to be the person that weighed ganja seized from the possession of A1 to A10 at CCS Police
Station on 20.11.2010 also turned hostile to the prosecution stating that he never weighed the ganja alleged to have been seized from the accused and his 161 Cr.P.C., statement is marked as Ex.P10 treating that witness hostile.
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16)P.W.9 Mohammad Gouse who is said to be the person that weighed the ganja seized by the Tahsildar from A12 also turned hostile to the prosecution stating that he does know the contents of the packets and only on the instructions of his employer he went to
Machavaram P.S., along with a balance and weighed something. His evidence is contrary to the prosecution case that such ganja was weighed in the Tahsildar office when seized from A12.
17)P.W.10 is the woman constable who was present when A12 was apprehended at Mother Theresa Statue in the presence of mediators and she identifies A12. But, she deposes that no mediator report was prepared with regard to the apprehension of A12 in her presence and she also does not speak about the seizure of any ganja by the Tahsildar in her presence. She deposes to the effect that A12 was entrusted to her and she was standing outside the police station.
Though the evidence of this witness to some extent speaks about the apprehension of A12, but does not support the prosecution version with regard to the recording of confession and the production of A12
before the Tahsildar and seizure of the ganja by the Tahsildar from A12
in her presence.
18)P.W.11 is said to be the one of the mediators for the apprehension of P.Ws.1 to 5 and L.W.1 while they were smoking cigarettes filled with ganja. He deposes to the effect that himself and another person by name Veera Babu were called by the Task Force
Police and they were taken to Labbipet where 5 or 6 persons were smoking cigarettes, police apprehended them and as those persons did not properly respond, the police prepared a mediator report mentioning the details of those persons. He also deposes that he does not remember as to what those persons confessed. He deposes that the mediator report was prepared for such apprehension at 2.00 p.m., 9 on 12.11.2010 in which his signature was obtained. Contrary to the case of the prosecution he deposes that mediator report was prepared in the police station. This witness was treated hostile by the Addl.
Public Prosecutor and cross examined him suggesting that those six persons were apprehended by the police in Karimullah Street of
Vijayawada and that mediator report was prepared there itself.
19)P.W.12 is the Drugs Inspector. Her evidence is to the effect that she clarified by her letter Ex.P14 mentioning the conversion of pentwin injection from milliliter to grams. That evidence is not of much help to the case of the prosecution.
20)P.W.13 is the then Inspector of Police, Task Force,
Vijayawada who alleged to have surprised the house bearing Door
No.40-2-3B of Karimullah Street and found P.Ws.1 to 5 and L.W.1 Vishal
Roshan consuming cigarettes filled with ganja and that he is the person said to have apprehended A1 to A10 at different places. His evidence is to the effect that while working as Inspector of Police, Task
Force on 20.11.2010 he received credible information about the consumption of ganja and narcotic injections and that he secured the mediator P.W.11 Mallikharjun and L.W.14 Veera Babu and reached the house bearing Door No.40-2-3B at Karimullah Street, Near
Sobhanachalam Readymade shop and apprehended P.Ws.1 to 5 and
L.W.1 Vishal Roshan smoking cigarettes with the smoke emitting the smell of ganja and that he surrounded all those students and interrogated them in the presence of the above said mediators. Those persons confessed about the details of the persons from whom they purchased ganja and sedative injections and they offered to show those persons from whom they purchased ganja and injections. He deposes that he got prepared a mediator report with regard to the information furnished by those students. Though they were found in 10 possession of cigarettes filled with ganja and were consuming the same, it appears that P.W.13 did not implicate them as accused in this case for possessing narcotic substance and he deposes that near
Mother Theresa statue he apprehended A1 and A2 in the presence of the mediators and both A1 and A2 confessed that they are in possession of pentwin injections. He took A1 and A2 into custody and proceeded to Priyadarsini Theatre, Arundalpet and he apprehended A3 at 3.45 p.m., with possession of 50 pentwin injections and that at 4.00 p.m., at the same place he apprehended A4 Sarojini while she was in possession of 54 packets of ganja. He also deposes that at the same place he took A5 into custody while she was in possession of 1.5 kg., of ganja. He further deposes that he also apprehended A6 at Priyadarsini
Theater and seized 400 gms., of ganja from his possession. He further deposes that he proceeded to Bhavani Ghat by 17.00 hours, there he took into custody of A7 with 2 kgs., of ganja in his possession. At the same place he took A2 into custody having in possession of 2 ¼ kg., of ganja. At the same place he took into custody the son of A8 i.e., A9 while he was in possession of 5 small packets of ganja. Again he returned to Karimullah Street, where he apprehended A10 into custody while he was in possession of 25 pentazocine injections. He also deposes that he orally informed to all the accused that the possession of ganja and injections is an offence under NDPS Act and he gave them option to be produced before the Gazetted Officer and that A1 to A10 exercised that option and accordingly he produced all the accused
before the Inspector of Police, CCS, by name Pavan Kumar, who is
Gazetted Officer and that a mediator report was prepared vide Ex.P15 for the apprehension of P.Ws.1 to 5 and L.W.1 Vishal Roshan. Of course, those persons were not made as accused for having possession of ganja. He further deposes that he produced A1 to A10 before the 11
Inspector of Police, CCS, P.W.12 as Gazetted Officer to record the confession, to seize the ganja and injections from the possession of accused and that after the confession of A1 to A10 was recorded by
P.W.15 and seized the ganja, cell phones, injections etc., by him, he took the accused 1 to 10 to Machavaram P.S., and handed over them to S.H.O., along with the contraband ganja, injections and the samples seized. In the cross-examination it is elicited from this witness that he did not reduce the information he received into writing. Though at one breathe this witness deposed that he informed to A1 to A10 that they have committed the offence under NDPS Act and they have right to be produced before the Gazetted Officer and again at another breathe he deposes that he does not remember whether he did not say to the accused that they have a right to be produced before the Magistrate.
It is suggested to him that it is not possible to apprehend the accused 1 to 10 at different places within that short time as mentioned in the mediator report and it is also difficult to produce the accused before
P.W.15 within the short time keeping in view the distance between the different places and the presence of heavy traffic at that time on the roads.
21)The learned counsel for the accused argues that as per the evidence of P.W.13 he has failed to comply the mandatory requirements u/s 42 and 50 of NDPS Act. He argues that as per
Sec.42 it is the duty of the P.W.13 to take down the information he received in writing but no such material is placed. Similarly, P.W.13 had the obligation to inform A1 to A10 about their right to be produced
before the Gazetted Officer, but no such information in writing is given.
As such, the entire prosecution is vitiated due to non compliance of those mandatory requirements.
22)Though P.W.13 did not inform the accused 1 to 10 in writing 12 by the prosecution that P.W.13 produced all the accused before the
Gazetted Officer P.W.15 shows that, that mandatory requirement is complied as per Sec.50. But as per the evidence of P.W.13 it is clear that the mandatory requirement u/s 42 is not at all complied and on that fact the learned counsel for the accused argues that such violation entitles the accused to have their acquittal.
23)Coming to P.W.14, he is the Deputy Tahsildar, Gazetted by name V.V.S.S.Subba Rao and according to the prosecution the
Inspector of Police, Machavaram having apprehended A12 with ganja in her possession produced before this witness P.W.14 and according to him he recorded confession of A12 and seized from her possession 800 gms., of ganja, a cell phone and cash of Rs.7,000/-. When the
Addl. Public Prosecutor asked to identify that woman who was produced before him he identified the female accused wearing red sari as the person whom the Inspector of Police, Machavaram produced
before him. In fact, he identified the woman accused in the court hall
as A12 but in fact the accused whom he identified is by name Chintadi
Ramana-A5. After such wrong identification when A12 got up, again he identifies A12 as the person who was produced before him by the
Inspector of Police, Machavaram.
24)The learned counsel for the accused argues that since the prosecution prepared the mediators reports etc., this witness is not in a position to identify A12 even though he deposes that he interrogated her, recorded her confession and seized ganja of 800 gms., a mobile phone and a cash of Rs.7,000/- from her. He deposes that he got
Ex.P16 mediator report drafted with regard to production of A12 before him and seizure of the ganja, cash etc., He admits that there is interpolation in the last page of Ex.P16 with regard to the weight of the sample and date. He also admits that in the 2nd page of Ex.P16 the 13
date 20.11.2010 was altered to 20.10.2010. Though this witness
supports the prosecution case with regard to the production of A12
before him by the Inspector of Police, Machavaram, his failure to
properly identify A12 in the chief examination itself and identifying A5 as A12 throws some doubt on the veracity of this witness. Further, as discussed above the woman P.C., who was said to be present at the time of the production of A12 before this witness did not support the events that took place in her presence and deposed that she was asked to stand outside the P.S., As such the evidence of P.W.14 also does not convincingly establish the seizure of 800 gms., of ganja,
Rs.7,000/- cash and cell phone vide M.Os.1 to 3.
25) P.W.15 is the then Inspector of Police, CCS, Vijayawada. He speaks about the production of A1 to A10 before him by P.W.13
Govinda Raju and that he seized four boxes of pentwin injections each box contains 10 strips with five injections in each sheet i.e., altogether according to him he seized 200 injections and also a mobile and that he separated one strip for sample out of those 200 injections. He also deposes that from A2 he seized one box of pentwin injections 50 in numbers in a white polythene cover and separated one strip of five injections as sample. He seized 50 injections from A3 and separated five injections for sample purpose and that he seized Rs.2,000/- cash along with Samsung and Nokia mobiles from A3. He also deposes that he seized 54 packets of ganja from A4 weighing 500 gms., and that he separated one packet for sample purpose and also seized Rs.8,000/- cash from her. He also deposes that he seized a green colour hand bag from A5 containing 1.5 kgs., of ganja and that he separated a small quantity from it for sample purpose. He seized 50 packets of ganja weighing about 400 gms., from A6 and separated one packet from it for sample purpose. From A7 he seized 2.225 kgs., of ganja 14 from a white polythene cover and separated a small quantity for sample purpose. He seized 2.250 kgs., of ganja from A8 from a white polythene cover and he separated a small quantity of it for sample purpose. From A9 he seized five packets of ganja weighing 5 gms., each and also a Nokia cell phone and that he separated one such packet for sample purpose. From A10 he seized 25 pentwin injections and an Apple phone and he separated one strip of five injections for sample purpose. He got prepared a mediator report for the above said seizure and drawing the sample vide Ex.P17 and he identified M.Os.4 to 8 pentwin injection boxes, M.O.9 black colour polythene cover containing 25 injections and M.Os.10 to 14 mobile phones. In the cross-examination this witness deposes that he informed A1 to A10 about their right to be searched by the Gazetted Officer, but he did not record the same in writing. He deposes that M.Os.4 to 14 do not contain the signatures of the mediators and signatures of the seizing authority. He admits that in page 8 of Ex.P17 the IME number of cell phone was mentioned below the gap left between the words cell phone and apple phone. It suggests that the IME number was subsequently interpolated.
26) Coming to P.W.16 he is Inspector of Police, Machavaram and speaks about the production of A1 to A10 before him by P.W.13
Govinda Raju and that he handed over the mediator report dt.20.11.2010 at 2.00 p.m., vide Ex.P15 and also the material objects seized and that based on the mediator report he registered Crime
No.488/2010 and that he speaks about the investigation by examining
P.Ws.1 to 5 and L.W.1 Vishal Roshan and that based on the statements of P.Ws.1 to 5 he sent A1 to A10 for remand. He also speaks about his arrest of A12 in the presence of mediators (who remained exparte) and produced before the Tahsildar by giving option to her to be produced 15
before the Magistrate and that the Executive Magistrate seized from
A12 800 gms., of ganja, cash of Rs.7,000/- He further deposed that he examined the witnesses and on receipt of chemical examiner report he laid charge sheet. In the cross-examination he deposes that A1 to A10 were arrested between 3.15 and 5.00 p.m. He denies the suggestion that the requirement u/s 50 of NDPS Act was not properly implemented. He denies the suggestion that he deliberately violated the procedure to be followed under the Act.
27)As already mentioned above all the alleged mediators to the apprehension of the accused and seizure of the ganja turned hostile and except the evidence of P.Ws.13 to P16 there is no independent corroborative evidenced by the 3rd party witnesses to support the case of the prosecution. The alleged mediators before whom the accused were said to have been arrested and the ganja and injections were recovered from their possession completely turned hostile to the prosecution. As such it is to be seen whether the evidence of P.Ws.13 to 16 can be the basis to hold that the prosecution succeeded in establishing those charges framed against the accused.
28)The learned counsel for the accused mainly urged that the mandatory requirement u/s 42 of NDPS Act is not complied by P.W.13 and as such, such violation is sufficient to throw out the case of the prosecution. Section 42 (1) reads that the authorized officer on receipt of reliable information with regard to the offence under NDPS Act has to reduce the same in writing and to inform to his immediate superior even though P.W.13 deposes that he received such reliable information he did not put it in writing. The Apex Court in State of Rajasthan
Vs., Jag Raj Singh @ Hansa reported in 2016 (2) ALT (Crl.) 314 (SC) held that the requirement u/s 42 (1) is mandatory. Sec.42 of the
NDPS Act reads that:- 16 “42. Power of entry, search, seizure and arrest without warrant or authorization.- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in tank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge of information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,
(a)Enter into and search any such building, conveyance or place;
(b)In case of resistance, break open any door and remove any obstacle to such entry;
(c)Seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V A of this Act; and
(d)Detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act; Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2)Where an officer takes down any information in writing under sub- section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.”
Thus, the officer concerned has to take the information in writing and 17 shall send a copy of the same to his immediate senior. The Apex Court in that ruling relied on (1994) 3 SCC 299 State of Punjab Vs.
Balbir Singh, wherein the Apex Court held that:- (2-C) Under Section 42 (i) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc., he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.”
In the light of such ruling with regard to the mandatory requirement it has to be held that such non compliance vitiates the prosecution. In that ruling the Apex Court held that, “The NDPS Act was enacted to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. This Court had occasion to consider the provisions of NDPS Act in large number of cases. This Court has noted that the object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly.”
29)In the light of the ruling of the Apex Court the reducing information in writing is the mandatory requirement and as per the ruling above discussed such non compliance of the mandatory provisions leads to acquittal of the accused. The Apex Court in the above ruling considered that the NDPS Act while prescribing harsh punishment to the accused dealing with those offences placed so many safeguards to see that the innocent persons are not subjected to such harsh punishment. In this case except the evidence of the official witnesses P.Ws.13 to 16 absolutely there is no corroboration from the 18 alleged mediators from the arrest of the accused and seizure of the property. Coming to P.W.14 the Gazetted Officer/Tahsildar he could not even identity A12 and such circumstance creates doubt about his seizure of M.Os.1 to 3 from A12. Though P.Ws.13, 15 and 16 to some extent supported the prosecution case, that evidence cannot be the basis to find the accused guilty for both the charges under Sec.8 (c) r/ w 20 (b)(ii)(B) of NDPS Act and 8 (c) r/w 21 of the Act, more particularly when there is non-compliance of mandatory requirement by P.W.13, which according to the Apex Court is sufficient to throw out the prosecution case.
POINT NO.3:-
30)In the result, the prosecution failed to prove the guilt of the accused for the charges u/s 8 (c) r/w 20 (b)(ii)(B) and 8 (c) r/w 21 of
NDPS Act and they are entitled to acquittal u/s 235 (i) Cr.P.C. Their bail bonds shall stand cancelled. M.Os.1, 2, and M.Os.10 to 14 are ordered to be confiscated to State. M.Os.3 to 9 are ordered to be destroyed as per rules after the appeal time is over.
Typed to my dictation by the Grade-II Steno, corrected and
pronounced by me in the open court, this the 15th day of May, 2017.
Metropolitan Sessions Judge,
Vijayawada.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED ON BEHALF OF
FOR PROSECUTION FOR DEFENCE
P.W.1: Polavarapu Harish --None— P.W.2: Vinnakota Phani Kumar P.W.3: Irfan Baig P.W.4: Vanguru Daniel P.W.5: Chedurthipati Sunil Manohar P.W.6: Nandeti Rayappa, Mediator P.W.7: Matta Prasad, Mediator P.W.8: Ramineni Sudheer, Weighter P.W.9: Md.Gouse, Weighter P.W.10: K.Rani, Woman PC.132 P.W.11: M.Srisaila Mallikharjuna Rao, Mediator 19
P.W.12: G.Jeevani, Drug Inspector P.W.13: K.Govinda Raju, Inspector of Police P.W.14: V.V.S.S.Subba Rao, Retd.Tahasildar P.W.15: P.E.Pavan Kumar, Inspector of Police P.W.16: N.Satyanandam, Inspector of Police (now ACP)
DOCUMENTS MARKED ON BEHALF OF PROSECUTION:
Ex.P1 20.11.2010 161 CRPC Statement of P.W.1 Ex.P2 20.11.20120161 CRPC Statement of P.W.2 Ex.P3 20.11.2010 161 CRPC Statement of P.W.3 Ex.P4 20.11.2010 161 CRPC Statement of P.W.4 Ex.P5 20.11.2010 161 CRPC Statement of P.W.5 Ex.P6 26.11.2010 Signature of P.W.6 on mediators report at 11.00 A.M. Ex.P7 26.11.2010 Signature of P.W.6 on mediators report at 12.00 A.M. Ex.P8 26.11.2010 Signature of P.W.7 on mediators report at 11.00 A.M. Ex.P9 26.11.2010 Signature of P.W.7 on mediators report at 12.00 A.M. Ex.P10 20.11.2010 161 CRPC Statement of PW8. Ex.P11 26.11.2010 161 CRPC Statement of PW9. Ex.P12 20.11.2010 Signature of P.W.11 on mediators report at 2.00 P.M. Ex.P13 20.11.2010 Signature of P.W.11 on mediators report at 5.45 P.M. Ex.P14 12.06.2012 Letter addressed by P.w.12 to SHO, Machavaram P.S. Ex.P15 20.11.2010 Mediators report at 2.00 P.M. Ex.P16 20.11.2010 Mediators report at 12.00 P.M. Ex.P17 20.11.2010 Mediators report at 17.45 P.M. Ex.P18 20.11.2010 FIR in CR.488/10 Ex.P19 26.11.2010 Mediators report at 11.00 A.M. Ex.P20 –- Letter of advice Ex.P21 –- Letter of advice. Ex.P22 3.5.2011C.E Report Ex.P23 28.2.2011C.E Report
DOCUMENTS MARKED ON BEHALF OF DEFENCE : -Nil-
MATERIAL OBJECTS MARKED:
M.O.1: Cash of Rs.7000/- seized from A12. M.O.2: Tata Indicom Cell Phone seized from A12. M.O.3: Ganja of 800 grms seized from A12. M.O.4: Pentwin Injection Box. M.O.5: Pentwin Injection Box. M.O.6: Pentwin Injection Box. M.O.7: Pentwin Injection Box. M.O.8: Pentwin Injection Box. M.O.9: Black Color Carry Bag 25 Pentwin Injections. M.O.10: Mobile Phone. M.O.11: Mobile Phone. M.O.12: Mobile Phone. M.O.13: Mobile Phone. M.O.14: Mobile Phone.
20
Spl. Judge for Trial of NDPS Act Cases, -cum-Metropolitan Sessions Judge,
Vijayawada.