Sri.R.Thirupathi

1

IN THE COURT OF THE METROPOLITAN SESSIONS JUDGE,

CYBERABAD, L.B NAGAR, RANGA REDDY DISTRICT

Present : R.Thirupathi, Metropolitan Sessions Judge, Ranga Reddy District at LB Nagar.

Friday, the 17th day of March, 2023

NDSC No.59 of 2016

1.Name & description of:The Intelligence Officer, Narcotic the complainantControl Bureau, Opp.Pillar No.107, PVNR Express Way, Ring road, Attapur PO, Golconda, Hyderabads-500 008.

2.Name & description of:1.Cherukupally Satyanarayana s/o the AccusedNarahari, age: 55 years, Flat No.303, Sai Residency, RTC Colony, LB Nagar, Hyderabad, Telangana-74 (died) 2. Janagam Yesu @ Yesu s/o J.Yedukondalu, aged: 27 years, Village- Station Thota, Gandhi Nagar PS Nuzividu town, Dist.Krishna, Andhra Pradesh.

3.Cr. No. & name of the :No.48/1/2/15/NCB/Sub Zone/Hyd. Police Station

4.Offences charged against:Under Section 8(c) read with 21 (c) 23, the accused

(c), 28 and 29 of the Narcotic Drugs and

Psychotropic Substances Act, 1985

5.Plea of accused:Not guilty

6.Finding of the Court:Not guilty

7.Prosecution conducted by :Sri A.Raja Shekhar Reddy, Special Public Prosecutor for NCB

8.Accused defended by:Sri D.Suryanarayana, Counsel for the accused No.2.

9.Sentence or Order:In the result, the accused is acquitted under Section 235 (1) of Code of Criminal Procedure, 1973 for the offence punishable under Section 8(c) read with 21 (c) 23, (c), 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. His bail bonds shall stand 2 cancelled, after expiry of appeal time. MO-1-Black colour bag, MO-2-Sealed packet of contraband, MO-3-Sample and MO-4-Sample, shall be destroyed after expiry of appeal time and the same shall be sent to the 'Drug Disposal Committee', for destruction, as provided under Section 52-A of the Narcotic Drugs and Psychotropic Substances Act, 1985.

This Sessions Case coming on this day before me for final hearing in the presence of Sri A.Raja Shekhar Reddy, Special Public Prosecutor for NCB and of Sri G.Suryanarayana, Counsel for the Accused and having been heard and stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

This is a complaint filed under Section 36-A of the Narcotic Drugs and Psychotropic Substances Act, 1985, by the Intelligence Officer,

Narcotic Control Bureau, Hyderabad, against the accused No.1 and 2 complaining of the offences punishable under Section 8(c) read with 21

(c), 23 (c), 28 and 29 of the Narcotic Drugs and Psychotropic Substances

Act, 1985.

2.The brief facts, leading to the prosecution of the accused, can be summarized as follows:-

(i)On 23.05.2015, PW-1 (Deepak Kumar) received information, which is reduced into writing under Ex.P-1 about illegal transportation of Heroin by

Janagam Yesu @ Yesu (accused No.2) and would be coming to Reliance

Mart, Opposite to Kamineni Hospital, LB Nagar, for delivering the same to

Cherukupally Satyanarayana (accused No.1) at about 05:30 A.M., on 24.05.2015. Basing on the said information, after getting instructions from the PW-3 (Pankat Kumar Dwivedi), In-charge Superintendent,

Narcotic Control Bureau, Hyderabad, PW-1 (Deepak Kumar) along with his team of officers proceeded to Reliance Mart, Opposite to Kamineni 3

Hospital, LB Nagar at about 05:30 A.M., along with the mediators PW-4 (Sadhu Ramulu) and A.Ramesh (LW-6). At about 05:30 A.M., the accused

No.2 came there with black colour suit-case in his hands and fifteen minutes later the accused No.1 came there and both greeted each other.

The accused No.2 handed over the suit-case to the accused No.1 and at that point of time, PW-1 (Deepak Kumar) along with his team apprehended the accused No.1 and 2 revealed their identity, as the officers of the Narcotic Control Bureau, Hyderabad and the accused No.1 and 2 gave their names and descriptive particulars. They have informed the accused of their statutory right to be searched in the presence of the mediators or a Gazetted officer under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and they have opted for search in the presence of the Narcotic Control Bureau officials and singed on the

Option Notice. The officers have offered themselves for their personal search for which the accused declined. When questioned about the possession of the Narcotic Drug by them, they replied in the affirmative and declared one kg of Heroin was concealed within the black colour suit- case, being carried by them. The accused have opened black colour suit- case and showed the contraband. The said officers found a blue colour powder and when it was tested with 'Field Drug Test Kit', they found the same to be positive for Heroin, which is a narcotic drug. So, the said contraband was seized along with Driving Licence, Xerox copy of the passport, Identity card from the accused No.1 and one bus ticket for journey dated 23.05.2015 was seized from the accused No.2.

(ii)The Narcotic Control Bureau officials shifted further proceedings to be conducted at their Narcotic Control Bureau office at Attapur, which is 4 accepted by the accused as well as the mediators voluntarily. They have recovered the said black colour suit-case were weighted with their cover and tapes still intact. First polythene bag weighted 0.538 kgs and the second black polythene bag weighted 0.540 kgs. The black colour board observed to be bound with carbon paper from the inside. As the brown colour powder found within both the black polythene covers was seemingly identical in all respects, the material from both the polythene packets were mixed thoroughly and further transferred into a separate polythene bag. The transparent polythene bag was weighed at 1.056 kgs marked as P-1.

(iii)Two representative samples were drawn of 05 grams each from the transparent polythene cover marked as P-1, which are marked as S-1 and

S.2. The samples packets were sealed, placed in brown colour paper envelopes and sealed properly and found to be 1.044 kgs. The packet was heat sealed and covered with marking cloth and stitched with thread and sealed properly and marked as P-2. The black colour suit-case used to conceal the black colour board was tied over with thread properly and marked as P-3.

(iv)The Narcotic Control Bureau officials have seized the entire contraband. The contraband materials and samples were sealed and affixed with lac using for Narcotic Control Bureau official seal bearing "NCB RIC HYD SEAL No.02" and they were pasted over with paper slips bearing dated signatures of the mediators and PW-1 and the accused. A

Test Memo was prepared in triplicate at the spot. The panchanama, detailing the search and seizure proceedings were prepared by PW-1 at 5 their office. The statements of the accused under Section 67 of the

Narcotic Drugs and Psychotropic Substances Act, 1985 were recorded by

PW-1 and PW-2 respectively, who gave their statements voluntarily. The accused were arrested and sent for judicial custody. The property was deposited with the Superintendent, Narcotic Control Bureau (PW-3), who passed godown receipt. Samples were sent for analysis to the Central

Forensic Science Laboratory, Hyderabad and the same were certified to be

Heroin. After completion of investigation, charge sheet was filed.

3.The case was taken on file as NDSC No.59 of 2016 against the accused No.1 and 2.

4.On the appearance of the accused before this Court, copies of documents have supplied to the accused, as required under Section 207 of the Code of Criminal Procedure, 1973.

5.After hearing the learned Special Public Prosecutor and the counsel

for the accused, the charges under Sections 8 (c) read withSection 8(c)

read with 21 (c) 23, (c), 28 and 29 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 were framed, read over and explained to the accused in Telugu, who pleaded not guilty to the said charges and claimed to be tried.

6.During the pendency of the case for trial, the accused No.1 is reported to have died and the case against him was abated. Now, the case is confined to the accused No.2 only.

7.The complainant, in order to unfold its story, has examined PW-1 (Deepak Kumar), search and seizing officer, PW-2 (P.Anil Kumar), who 6 examined the accused, recorded the statement submitted the report under Section 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and investigated into the cases, PW-3 (Pankaj Kumar Dwivedi), In- charge Superintendent of Narcotic Control Bureau, Hyderabad, Sub Zone, who is supposed to have received the seized material sin the godown and also received the report under Section 57 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 submitted by the Intelligence Officer,

PW-5 (Dinesh A.Chavan), Superintendent who has received Chemical

Examiner report from Central Forensic Science Laboratory, Hyderabad,

PW-4 (Sadhu Ramulu), one of the mediators in whose presence the contraband is supposed to have seized.

8.After closure of the complainant's evidence, the accused were examined under Section 313 of the Code of Criminal Procedure, 1973. The accused No.2 denied the incriminating material put to him and he did not propose to examine any defence witness.

9.Heard the learned Special Public Prosecutor and the counsel for the accused. Perused the record.

10.The point for consideration is:

“Whether the complainant is able to establish that the accused has been in physical and conscious possession of the contraband without licence or permit beyond all reasonable doubt?"

11. POINT: As stated already, the accused stood charged for the offences punishable under Sections 8 (c) read with Sections 21 (c), 23 (c), 28 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, alleging that the accused No.2 along with the accused No.1 (since died) 7 were found in possession of 1.054 kgs of Heroin, which is of commercial quantity and which is a narcotic drug, without licence or permit contravening the provisions of Section 8 (c) of the Narcotic Drugs and

Psychotropic Substances Act, 1985.

12.The plea of the accused is one of total denial and false implication.

As stated already, the accused No.1 is reported to have died during the pendency of the case and the case against him is abated and now the case is confined to the accused No.2 only.

13.The learned Special Public Prosecutor, while taking me through the evidence of PW-1 to 5, has argued that the prosecution could successfully proved the charges against the accused beyond all reasonable doubt and the evidence of the said witnesses is reliable and trustworthy and does not suffer from any infirmities affecting their credibility and as such, the accused may be dealt with suitably as per law.

14.On the other hand, the learned Senior counsel for the accused has vehemently argued that there are infirmities, inconsistencies and contradictory versions in the investigation and evidence of the prosecution witnesses and violation of statutory provisions of Sections 41, 42, 50 and 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and as such, the accused is entitled to benefit of doubt.

15.Keeping in view the above rival submissions, we have to appreciate the evidence of the prosecution witnesses carefully scrutinized and cautiously appreciated before placing reliance upon their testimonies to base conviction of the accused.

8 16.PW-1 (Deepak Kumar), is the then Intelligence Officer, at the relevant point of time, PW-2 (P.Anil Kumar), is the then Intelligence Officer at the relevant point of time at Hyderabad, PW-3 (Panjak Kumar Dwivedi), is the then Superintendent of the Narcotic Control Bureau, Benguluru holding in-charge of Hyderabad Zone and PW-5 (Dinesh A.Chavan), is the then Superintendent, Narcotic Control Bureau, Hyderabad at the relevant point of time and PW-4 (Sadu Ramulu), is the mediator, who is a Village

Revenue Officer at the relevant point of time.

17.It is in the evidence of PW-1 and 2 that PW-1 receiving information on 23.05.2015 about two persons dealing with narcotic substance at

Reliance Mart, near Kamineni hospital, LB Nagar on 24.05.2015 and he noted the said information, which is Ex.P-1 under Section 42 of the

Narcotic Drugs and Psychotropic Substances Act, 1985.

18.He deposed to have informed the Superintendent PW-3 (Pankaj

Kumar Dwivedi) at the relevant point of time and as per his instructions, he along with PW-2 (T.Anil Kumar) proceeded to Reliance Mega Mart at

Kamineni Hospital, LB Nagar where they secured the mediators, including

PW-5 (Dinesh A.Chawan) and another. At about 5:00 A.M., they found the accused coming there with black colour suit-case. Fifteen minutes thereafter the accused No.1 came there. When the accused No.2 was handing over the bag to the accused No.1, they have surrounded them.

They revealed their identity and informed them about the information by them. They have served the Option Notice under Section 50 of the

Narcotic Drugs and Psychotropic Substances Act, 1985, which is Ex.P-2 informing their right for search in the presence of a gazetted officer and 9 the accused reported that there is no need to search in the presence of a gazetted officer. Ex.P-2-notice and Ex.P-3-search memo were served upon the accused. They have searched the person of the accused, they found a driving licence, xerox copy of the passport and another job identity card, which are Ex.P-4 to Ex.P-6 and on personal search, they found bus ticket-

Ex.P-7 travelled from Vijayawada to Hyderabad.

19.They have further deposed that on opening the bag, they found a card-board box, which contains two blue colour packets and in the presence of the said mediators, they have opened the said two covers.

They tested the contents of the brown colour packets with their Testing

Kit and found the same to be positive for Heroin. So, they took the accused along with the packets to their office where they got polythene cover weighted and found 0.538 kgs and another packet contains 0.540 kgs. They changed the contraband from both the brown colour to one transparent colour and the total weight was found to be 1.056 kgs and they have drawn two samples from the contraband 0.5 kgs each by putting them into small polythene covers. They have sealed the same, put them in brown colour packets and again sealed them with Narcotic Control Bureau seal. PW-1 identified MO-1 as the black colour bag, MO-2 as the sealed packet of contraband, MO-3 and MO-4 are the samples collected by him.

They have seized the contraband under a cover of mediator report-Ex.P-8.

They have obtained the signatures of the mediators, accused and panchanama and also the material objects. Ex.P-9 is the Test Memo was prepared and samples were sent to the Central Forensic Science

Laboratory, Hyderabad.

10 20.PW-1 deposed to have recorded the statement of the accused No.1 under Ex.P-11, after serving the notice Ex.P-10 under Section 67 of the

Narcotic Drugs and Psychotropic Substances Act, 1985. He effected the arrest of the accused No.1 and handed over the seized material to the godown in-charge. He further deposed that he submitted a report-Ex.P-12 on 25.05.2015 under Section 57 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 and sent arrest report-Ex.P-13 to the Superintendent and he arrested the accused No.1 and sent him for judicial custody. Later, the accused No.2 was arrested by PW-2 and sent for judicial custody. In cross-examination, PW-1 admits that he has not recorded the information in writing separately, which was received telephonically and he further admits that Ex.P-1-information was recorded from out of his memory. He admits that he has not received any confirmation letter in writing from the

Superintendent, Narcotic Control Bureau pursuant to the endorsement made on Ex.P-1 and the Superintendent endorsed the same on the next day. He further admits that by the time the contraband was seized and the samples were drawn the panchanama-Ex.P-8 was not concluded. He denied the suggestion that the contraband was recovered at LB Nagar and seizure was effected at his office. It means that by these positive denial of the suggestion, PW-1 disputes the seizure of the contraband at LB Nagar from the accused. He further admits that he has not prepared any separate search memo regarding the grounds of his belief for effecting search except Ex.P-1. Admittedly, he is not a gazetted officer and he proceeded to the scene of offence before sun-rise.

21.PW-1 further admits that PW-2 is also a non gazetted officer. The contraband was recovered at LB Nagar and its seizure was effected at 11

Narcotic Control Bureau office, which is a strange practice adopted by PW- 1 in conducting search and seizure proceedings, which is not in conformity with the provisions of Section 41 and 42 of the Narcotic Drugs and

Psychotropic Substances Act, 1985.

22.Admittedly, PW-1 did not prepare any separate search memo incorporating the grounds of his reasons for belief for conducting the search on 24.05.2015 at 04:30 A.M. He also admits that he has not obtained any search warrant from the Magistrate. Thus, PW-1 being a non gazetted officer, he is required to obtain permission from his superiors

before proceeding to the place of offence as required under Section 42 of

the Narcotic Drugs and Psychotropic Substances Act, 1985, since the search was intended to be conducted prior to sun-rise. He further admits that he has not prepared any panchanama proceedings at LB Nagar after recovering the contraband. Even the samples were drawn at their office, after seizing the contraband. The Test Memo-Ex.P-9 was also prepared at his office.

23.PW-2 (P.Anil Kumar) also admits in cross-examination that Pw-1 did not show any search authorization. He also admits that he has not prepared any grounds of belief for effecting search on the accused and served upon them. He is also admits that he has not seen any document as to whether to other team members prepared the grounds for belief or search.

24.Thus, both Pw-1 and 2 did not follow the mandatory provisions of

Section 41 and 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985. They are required to record the information received by PW-1 over 12 phone in writing and send the same to his superiors immediately and obtained prior permission for proceeding to place of search, but they did not choose to do so.

25.Even PW-1 and 2 also having found the accused No.2 handing over the briefcase to the accused No.1 at which moment they were apprehended and the contraband was found, the natural conduct and duty casts upon them to conduct search and seizure proceedings at the spot.

Surprisingly, panchanama-Ex.P-8 shows the place of panchanama near

Reliance Mart, near Kamineni Hospital, LB Nagar, commenced at 04:30

A.M., on 24.05.2015. Pw-1 and PW-2 did not conclude the said panchanama proceedings at the spot. After recovering the said contraband at that place, they closed the panchanama proceedings, but the panchanama is a continuous running panchanama and it shows that with the consent of the mediators and the accused, they have taken the accused to their office and conducted remaining proceedings of weighment, drawing of samples and sealing the same. This practice, adopted by PW-1 and PW-2, is not in consonance with the provisions of

Section 100 of the Code of Criminal Procedure, 1973 and also is contrary to the provisions of Section 41 and 42 of the Narcotic Drugs and

Psychotropic Substances Act, 1985. Nothing prevented PW-1 and 2, having commenced panchanama proceedings-Ex.P-8 at 04:30 A.M., at LB

Nagar to conclude the same then and there. It creates a doubt about the genuineness and correctness of the panchanama.

26.The statement of the accused under Section 67 of the Narcotic

Drugs and Psychotropic Substances Act, 1985, cannot be admitted any evidence in view of the decision of the Hon'ble Apex Court in UNION OF 13

INDIA v. MOHANLAL (2016 Latest Caselaw 90 SC). So, the prosecution cannot take aid of the statements of the accused No.2 and Ex.P-2 to implicate the accused. They both A1 and 2 were shown to be apprehended at the spot by PW-1, for the reasons best known to Pw1, he has chosen to remand the accused No.1 only for judicial custody, as per his evidence. He did not depose to have sent the accused No.2 for judicial custody on the same day along with the accused. PW-2, who arrested the accused No.2, but Pw-1 sent the accused No.2 for judicial custody, which is contradictory to the version of Pw1, who deposed that Pw-2 has arrested the accused No.2 and sent him for judicial custody.

27.Surprisingly, the mediator PW-4 (Sadu Ramulu) deposed that panchanama-Ex.P-8 was prepared at the place of search and seizure in chief examination itself. He too admits that PW-1 did not show any search authorization or grounds of reasonable belief and obtain his signature thereon. He further admitted that PW-1 did not prepare any panchanama at the spot. PW-4 deposed that the contraband was weighed and found the same to be containing 500 grams each, as against the version of Pw1 and 2 that the contraband was found to be weighing 0.538 kgs and 0.540 kgs. PW-4 deposed that only one sample, after mixing of a small quantity, was drawn for testing purpose, whereas PW-1 deposed that they have drawn two samples from the contraband of five kgs each, by putting them into small polythene covers. When two samples were drawn, it is not known as to how MO-3 and 4-samples were held up with PW-1 for deposing in the court. The unspent portion of the samples received from the Forensic Science Laboratory are not deposited and marked as Material

Object so as to compare the same with MO-3 and 4-samples. It is doubtful 14 as to whether two samples were drawn as per PW-1 and one sample as per the evidence of PW-4-mediator. It creates a doubt in the mind of the court as to the drawal of the samples by PW-1 and PW-2. Though two packets were found in MO-1-packet, but the prosecution has deposited only one sealed packet, marked as MO-2. The prosecution failed to deposit another sealed packet.

28.As stated already, according to PW4, panchanama was prepared and signed by him at the spot, whereas Pw-1 deposed that it was typed at his office for recovering the contraband and he has not prepared any panchanama at the spot i.e., at LB Nagar, after recovering the contraband.

29.PW-1 and 2 also failed to follow the mandatory provisions of

Section 52-A of the Narcotic Drugs and Psychotropic Substances Act, 1985. They are required to produce the properties with list of inventory of the same and take photographs of the said contraband and inventory of the articles and obtain certificate from the jurisdictional Magistrate and got samples drawn in his presence for being sent to the Forensic

Science Laboratory for the purpose of analysis. PW.1 to 3 and 5 did not depose to have followed this mandatory provision contemplated under

Section 52-A of the Narcotic Drugs and Psychotropic Substances Act, 1985.

30.In view of the above glaring infirmities in the investigation and evidence of PW-1 and 2 in conducting search and seizure proceedings, failure of Pw1 and 2 to follow the mandatory provisions of Sections 41, 15 42 and also 50 and 52-A of the Narcotic Drugs and Psychotropic

Substances Act, 1985.

Since PW1 and 2 being non-gazetted officers, they cannot conduct search without search authorization from superiors, even if the accused consents for doing so. The provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 mandates that the accused be appraised of their right to be searched in the presence of a Magistrate or a gazetted officer. Since Pw1 and 2 are not the gazetted officers, even if the accused consented for search in their presence, it cannot render the search legal and it can be safely concluded, without any hesitation that the search and seizure of the contraband conducted by Pw1 and 2 is illegal and contrary to the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

31.As stated already, in view of the above infirmities and inconsistencies in the investigation and evidence of PW1 to 5, it is not safe to place reliance upon their testimonies to base conviction of the accused. These procedural lacunae and defiance to follow the mandatory provisions would vitiate the investigation and consequent trial upon such unauthorised and illegal in conducting search and seizure proceedings, their evidence cannot be relied and acted upon to convict the accused. I, therefore, hold that the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt and find them not guilty of the offences with which they stood charged.

28.In the result, the accused is acquitted under Section 235 (1) of Code of Criminal Procedure, 1973 for the offences punishable under Sections 16 8(c) read with Section 21 (c) 23, (c), 28 and 29 of the Narcotic Drugs and

Psychotropic Substances Act, 1985. His bail bonds shall stand cancelled, after expiry of appeal time.

MO-1-Black colour bag, MO-2-Sealed packet of contraband, MO-3-

Sample and MO-4-Sample, shall be destroyed after expiry of appeal time and the same shall be sent to the 'Drug Disposal Committee', for destruction, as provided under Section 52-A of the Narcotic Drugs and

Psychotropic Substances Act, 1985.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by

me in the open court on this the 17th day of March, 2023.

METROPOLITAN SESSIONS JUDGE,

CYBERABAD, RANGA REDDY DISTRICT.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

PW1Deepak Kumar None PW2P. Anil Kumar

PW3Pankaj Kumar Dwyveda PW4Sadu Ramulu PW5Dinesh A. Chavan

EXHIBITS MARKED

FOR PROSECUTION:

Ex.P1. Information U/Sec 42 of NDPS Act Ex.P2 Notices U/Sec 50 of NDPS Act

Ex.P3 Search Memo (A1 and A2) Ex.P4 Driving License ( A1) Ex.P5 Xerox copy of job identity card (A1) Ex.P6 Xerox copy of Passport (A1) Ex.P7 Bus ticket boarding pass Ex.P8 Panchanama (Mahazar) Ex.P9 Test Memo Ex.P10 Notice U/Sec 67 of NDPS Act (A1) Ex.P11 Statement of A1 Ex.P12 Search and seizure report U/Sec 57 of NDPS Act, dated 25-05-2015 Ex.P13 Report of arrest ( A1) Ex.P14 Letter of depositing the contraband before the Superintendent NCB, dated 24-05- 2015 17

Ex.P15 Gowdown receipt issues by LW3 Ex.P16 Notice U/Sec 67 of NDPS Act (A2) dated 24-05-2015 Ex.P17 Statement of the accused No.2 Ex.P18 Report of Arrest ( A2) U/Sec 57 of NDPS Ex.P19 Letter of sending sample to CFSL by superintendent NCB, dated 26-05-2015 Ex.P20 Letter to Nodal Officer, Idea Celloer, Hyderabad requesting to furnish the detail of the customer application form and call details of the mobile numbers, dated 04-06-2015. EX.P21 Reply of the Nodal Officer, Idea Cellular, Hyderabad dated 14-08-2015 EX.P22 Letter to nodal officer Bharathi Airtel, Hyderabad requesting to furnish the detail of the customer application form and call details of the mobile number, dated 04-06-2015 EX.P23 Reply of the Nodal officer Bharathi Airtel, Hyderabad, dated 21-08-2015 Ex.P24 Letter to regional passport officer Secunderabad, dated 26-08-2015 Ex.P25 Reply of Regional Passport Officer Secunderabad furnishing details dated 28-08-2015 Ex.P26 Letter to the Manager SBI, Nampally Branch furnishing the bank statement of A1 Ex.P27 Attested copy of the statement off account of A1 furnished by the SBI, Nampally Branch EX.P28 Summons issued U/sec 67 of NDPS Act to Sadu Ramulu (LW5) to appear and give statement dated 19-08-2015 Ex.P29 Statement of Sadu Ramulu (LW5) dated 21-08-2015 EX.P30 Summons issued U/sec 67 of NDPS Act to A. Srinivasa Rao dated 20-08-2015 EX.P31 Summons issued U/sec 67 of NDPS Act to J. Edukondalu Rao dated 24-08-2015 Ex.P32 Statement of Edukondalau Ex.P33 Summons issued U/sec 67 of NDPS Act to Adala Ramesh(LW6) dt.13-10-2015 Ex.P34 Statement of A. Ramesh, dated 14-10-2015 Ex.P35 Forwarding note dated 24-05-2015 Ex.P36 Covering Letter to the director CFSO, Ramanthapur dated 26-05-2015 Ex.P37 Gowdown register at serial No.11 Ex.P38 Letter addressed to superintendent NCB by the CFSL to collect the Analysis report,

dated 30-07-2015

Ex.P39 Forwarding letter to the director CFSL Ramanthapur by the NCB Superintendent to appoint Dinesh A.Chavan (LW4) to collect the reports, dated 03-08-2015 Ex.P40 Letter to Superintendent NCB from CFSL, Hyderabad forwarding the examination report, dated 04-08-2015 Ex.P41 Examination Report of CFSL Hyderabad.

FOR DEFENCE: -NIL-

MATERIAL OBJECTS

MO-1 Black colour bag MO-2 Sealed packet of contraband MO-3 sample MO-4 sample MO-5 Unspent portion of the sample

METROPOLITAN SESSIONS JUDGE,

CYBERABAD, RANGA REDDY DISTRICT.

1

IN THE COURT OF THE SPECIAL JUDGE FOR CASES UNDER NDPS ACT

(METROPOLITAN SESSIONS JUDGE),

CYBERABAD, L.B NAGAR, RANGA REDDY DISTRICT

Present : R.Thirupathi,

Special Judge for cases under the NDPS Act,

(Metropolitan Sessions Judge), Ranga Reddy District, at LB Nagar.

Wednesday, this the 15th day of March, 2023

NDSC No.11 of 201 4

1.Name & description of:The Inspector of Police, Hayathnagar. the complainant

2.Name & description of:1. Gore Veeresh Goud s/o Sailu goud, the Accused35 years, Occ: Real Estate business r/o Thippaya Gudem village, Manchal mandal, Ranga Reddy District. (A-1).

2. Bura Venkatesh Goud s/o Jangaiah, age: 27 years, Occ: Driver of DCM r/o H.no.1-45,Thippaigudavillage, Manchala mandal, Ranga Reddy District. (A-2).

3. Md.Jani (died) Boya Ravi s/o Maisaiah, age: 29 yrs, Occ: Cleaner r/o H.No.1-31, Thippaiguda village, Manchala mandal, Ranga Reddy District. (A-4)

3.Cr. No. & name of the :No.670/2013 of Hayathnagar Police Police StationStation.

4.Offence(s)charged:under Section 8(c) read with 20 (b) of against the accused the Narcotic Drugs and Psychotropic Substances Act, 1985.

5.Plea of the the accused:Not guilty

6.Finding of the Court:Not guilty

7.Prosecution conducted by :Sri K.Raji Reddy, Addl.Public Prosecutor

8.Accused are defended by:Sri D.Suryanarayana, Counsel for the accused.

9.Sentence or Order:In the result, the accused is acquitted under Section 235 (1) of the Code of Criminal Procedure for the offence punishable under Section 8(c) read with 20 (b) of the Narcotic Drugs and 2

Psychotropic Substances Act, 1985. The bail bonds of the accused shall stand cancelled, after expiry of appeal time. MO-1-ganja plant, MO-2-ganja plant, MO- 3-ganja plant, MO-4-ganja plant, MO-5- ganja plant, MO-6-ganja plant and MO-7- loose ganja weighing about 20 grams, shall be destroyed after expiry of appeal time and the same shall be sent to 'Drug Disposal Committee, for disposal, according to law, as per Section 52-A of the Narcotic Drugs and Psychotropic Substances Act, 1985.

This Sessions Case coming on this day before me for final hearing in the presence of Sri K.Raj Reddy, Additional Public Prosecutor and of Sri Sri D.Suryanarayana, Counsel for the accused and having been heard and stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

The Inspector of Police, Hayathnagar, has filed charge sheet against the accused Nos.1 to 6, showing the accused Nos.5 and 6, as absconding, in

Cr.No.670/2013 for the offence punishable under Section 8 (c) read with

Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

2.The case was taken on file against the accused Nos.1 to 6 as NDSC

No.11 of 2014 and NBWs were issued against the accused Nos.5 and 6.

Since the presence of the accused could not be secured, due to non execution of the warrants, the case against the accused Nos.5 and 6 was separated and numbered as SC No.41/2017 and the case against the accused Nos.1 to 4 is proceeded with.

3.The brief facts, leading to the prosecution of the accused, can be summarized as follows:-

(i)On 26.09.2013, having received reliable information about transportation of dry ganja in DCM vehicle bearing No.AP-24-X-4533, 3 coming from Vijayawada towards Hyderabad, on National Highway No.65, after obtaining search proceedings from the Asst.Commissioner of the

Police, Vanasthalipuram, PW-1 (K.Chandrasekhar), along with his staff, proceeded to ORR Pedda Amberpet at about 07:00 A.M., they have intercepted DCM vehicle bearing No.AP-24-X-4533, the accused Nos.1 and 3 were found in the said vehicle. They revealed their identity particulars.

PW-5 (G.Srinivas Kumar) secured the presence of PW-3 (Ch.Madhu Mohan) and PW-4 (G.Aruna), Gazetted Officer and in their presence when the DCM vehicle was checked, the found 103 polythene covers containing 900 kgs of ganja, which was seized under cover of panchanama in the presence of the said gazetted officer along with DCM vehicle, cash of Rs.10,150/- (Rupees Ten thousand one hundred and fifty only), four Samsung mobile phones, two Nokia, one Carbon phone under cover of panchanama.

(ii)A case in Crime No.670/2013 was registered and investigated.

During the course of investigation, witnesses were examined. When the samples were sent to the Forensic Science Laboratory, the Chemical

Examiner issued report opining that the said contraband is that of

Cannabis plant, which is ganja. The said contraband was being transported by the accused Nos.1 to 4 on the instigation of the accused No.5 for delivering the same to the accused No.6 at Vanaja Thanda, Pimpelnaer,

Maharashtra. After completion of investigation, charge sheet was filed showing the accused Nos.5 and 6 as absconding.

3.On the appearance of the accused before this court, copies of documents have been supplied as required under Section 207 of the Code of

Criminal Procedure, 1973.

4 4.During the pendency of the case, the accused No.3 is reported to have died and the case against him was abated and the case is now confined to the accused Nos.1, 2 and 4.

5.A charge under Section 8 (c) read with 20 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985, was framed, read over and explained to the accused Nos.1, 2 and 4 by my learned predecessor on 17.04.2018. The accused denied the said charge and claimed to be tried.

6.The prosecution, in order to unfold its story, has examined PW-1 (K.Chandrasekhar) and PW-2 (G.Nagaraju), the police officials; PW-3 (Ch.Madhu Mohan) and PW-4 (K.Aruna) are the officials in whose presence the contraband is supposed to have been seized and PW-5 (G.Srinivas

Kumar), Investigating Officer, who also participated in the search and seizure proceedings.

7.After closure of the prosecution evidence, the accused were examined under Section 313 of the Code of Criminal Procedure, 1973, with reference to the incriminating circumstances appearing against them.

They denied the said material evidence put to them and they did not propose to examine any defence witness.

8.Heard the learned Additional Public Prosecutor and the counsel for the accused. Perused the record.

9.The point for consideration is:

“Whether the prosecution is able to establish that the accused have

been consciously in possession of the contraband without licence ,

beyond all reasonable doubt?” 5

10. Point:- The allegation against the accused is that the accused were transporting ganja in DCM vehicle bearing No.AP-24-X-4533, which is narcotic drug, without licence or permit.

11.The plea of the accused, as can be seen from the tenor of cross- examination of the prosecution witnesses and as argued by the learned defence counsel, is one of total denial and false implication.

12.The Additional Public Prosecutor, taking me through the evidence of

PW-1 to PW-5 against the accused beyond reasonable doubt, and as such the accused be punished as per law.

13.On the other hand, the learned defence counsel has vehemently argued, taking me through the evidence of the prosecution witnesses, that the evidence of the prosecution witnesses suffers from infirmities, inconsistencies and contradictions and the police officials did not follow the mandatory provisions of Sections 42 and 57 of the Narcotic Drugs and

Psychotropic Substances Act, 1985, which are mandatory provisions and as such, the accused are entitled for acquittal.

14.Keeping in view the above rial submissions, let us now appreciate the evidence adduced by the prosecution to find out as to whether the prosecution could prove the charge against the accused beyond reasonable doubt.

15.PW-1 (K.Chandrasekhar) is the Inspector of Police (SOT) and PW-2 (G.Nagaraju) is the Sub Inspector of Police, (SOT) Rachakonda

Commissionerate. They deposed that on 26.09.2013 at about 07:00 A.M., while they were conducting the vehicle checking duty on National Highway 6 near 26 KM stone, they found DCM van bearing No.AP-24-X4533, coming from Vijayawada side and proceeding towards Hyderabad. They have intercepted the said vehicle on suspicion and found the accused Nos.1 to 4 in the said van. They found 103 polythene bag covers, which contained dry ganja. They have taken the said contraband and the vehicle to the Police

Station, Hayathnagar where the local Inspector of Police seized the contraband along with the vehicle, mobile phones and cash from them.

16.PW-3 (Ch.Madhu Mohan) is the then Deputy Collector, Hayathnagar and PW-4 (K.Aruna) is the Mandal Development Officer, Hayathnagar. Both of them have deposed on oath that on 26.09.2013 at 08:10 A.M., they have received oral requisition from the Inspector of Police, Hayath Nagar, about the apprehension of the persons and seeking their presence and on their request, they went to the place of offence at Pedda Amberpet on

Highway, they found DCM lorry bearing No.AP-24-X-4533 along with PW-1 and PW-2 and the accused. They have searched the said DCM lorry, which contained 103 polythene covers containing ganja. The said ganja was being transported from Raigiri, Odisha State to Maharashtra for sale and the Inspector of Police collected two samples from the said ganja and the panchanamas-Ex.P-1 to Ex.P-4 were conducted at the spot. The police seized the said contraband along with seven mobile phones and cash of

Rs.10,150/- (Rupees Ten thousand one hundred and fifty only). Thus, according to PW-3 and PW-4, search and seizure took place at the spot in the presence of PW-3 and PW-4. But, surprisingly, PW-1 and PW-2 deposed that after finding the said contraband, they have shifted the vehicle along with the accused to the Police Station, Hayath Nagar where panchanama proceedings were conducted. Even the panchanamas-Ex.P-1 7 to Ex.P-4 reveal that they were conducted at the scene of offence. The evidence of PW-1 and PW-2 does not reveal drawal of the samples at the scene of offence, though PW-3 and PW-4 deposed about drawal of two samples. PW-3 admits that the official seal of the seizing officer was not affixed on the samples.

17.Neither the samples nor the unspent portion of the sample nor remaining contraband was produced before court and marked as Material

Objects during the course of trial.

18.PW-4 (K.Aruna) admits that the Inspector of Police did not prepare any separate inventory of the articles seized. Even PW-3 also admits that there is no mention in the panchanama that the contraband and the samples were seized in her presence. Even it is admitted by PW-4 that the

Inspector of Police did not serve any search memo the accused before searching the vehicle.

19.(i) PW-5 (G.Srinivas Kumar) is the then Inspector of Police, who deposed to have received information on 26.09.2013 and on such information, he along with Pw-1 and PW-2 and other members of the SOT proceeded to Pedda Amberpet Outer Ring Road Junction after obtaining search proceedings-Ex.P-5 from the Asst.Commissioner of Police,

Vanasthalipuram at about 07:00 A.M., and at about 07:00 A.M., they found

DCM bearing No.AP-24-X- 4533 coming there, they have intercepted the said vehicle. They found the accused Nos.1 to 4 in the said vehicle. They have searched the said vehicle, which contained 103 polythene bags containing ganja. The accused gave statements-Ex.P-1 to Ex.P-4 in the presence of PW-3 and PW-4 and pursuant to their statements, he seized 8 the said 103 polythene bags containing ganja from the accused No.1 under

Ex.P-1. Sixty bags contained ten kgs, 29 bags contained five kgs and thirteen bags of contained eleven kgs and one bag contained seven kgs.

He has drawn two samples from each of 103 polythene bags for chemical examination. He seized the said contraband, DCM vehicle along with MO-1

RC book of the accused No.1.

(ii).He also deposed to have seized mobile phones of Samsung make, which are MO-3 and MO-4 and cash of Rs.5,000/- (Rupees Five thousand only) from the accused No.1. He seized three mobile phones-MO-5 to

MO.7, cash of Rs.2,000/- (Rupees Two thousand only) under Ex.P-3- statement-cum-seizure panchanama. He also deposed to have seized

MO.8-Carbon cell phone, MO-2-Driving licence and cash of Rs.2,000/- (Rupees Two thousand only) from the possession of the accused No.3 in pursuance to his statement-cum-seizure panchanama-Ex.P-3. He also deposed to have seized MO-9-Mobile phone, cash of Rs.1,150/- (Rupees

One thousand one hundred and fifty only) from the possession of the accused No.4 in pursuance to his statement-cum-seizure panchanama-

Ex.P-4.

(iii).He sealed the contraband and the samples and other articles and affixed the chits signed by him and the mediators. He brought the accused along with seized material and case papers to the Police Station. He sent the samples to the Forensic Science Laboratory, Hyderabad, through the

Asst.Commissioner of Police. He deposited the remaining contraband, samples along with seized articles on 04.01.2014 vide CPR No.5/2014. He received FSL report-Ex.P-7 opining that the samples are ganja.

9 (iv)In cross-examination, he admits that he did not record the information received by him in writing. Though he deposed to have made an entry in the General Diary, but he did not choose to file extract of the

General Diary. Thus, PW-5 did not deposed to have submitted any report as required under Section 42 of the Narcotic Drugs and Psychotropic

Substances Act, 1985.

20.Admittedly, Search proceedings-Ex.P-5 does not contain time by the

Asst.Commissioner of Police. Though PW-5 deposed to have served search proceedings on the accused, but Ex.P-5-search proceedings does not contain signature of any of the accused containing their acknowledgment to show that it was served upon them. Thus, there is no compliance of the provisions of Section 42 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 by PW-1 to Pw-5.

21.Though we find report Ex.P-7- that 103 samples were sent for analysis but the corresponding samples or the unspent portion of the samples were not deposited in the court. PW-5 admits that he has not mentioned in the panchanama about sealing the samples with sealing wax and he did not put his official specimen seal on the panchanama, which was used for sealing the contraband and samples. Though he deposed to have submitted a detailed report to his superior officer under Section 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985, but PW-5 admittedly, did not file the said report into the court. Thus, there is no substantial compliance of Section 57 of the Narcotic Drugs and

Psychotropic Substances Act, 1985.

10 22.Even PW-5 did not file any godown receipt showing deposit of the contraband and the samples and also any other document to show that the said contraband and samples were kept intact till they were deposited into the court and sent to the laboratory respectively. Even there is no evidence let-in by the prosecution to show that the contraband was deposited with the Drugs Disposal Committee and it was destroyed in accordance with the provisions of Section 52-A of the Narcotic Drugs and

Psychotropic Substances Act, 1985. Neither the contraband nor the unspent portion of the samples are deposited into the court and marked as Material Objects during the course of trial. Thus, there is infraction of statutory provisions of Sections 42 and 57 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 by PW-1, PW-2 and Pw-5, who participated in the search proceedings.

23.Another glaring legal lacunae in this case done by the very same

Inspector of Police, who happened to be a witness to the search proceedings, conducted investigation by examining the witnesses and filed charge sheet, which is quite contrary to the settled principles of investigation and such practice adopted by PW-5 has been seriously condemned by the Hon’ble Supreme Court in a catena of decisions, including the decision in Megha Singh v. State of Haryana (1996) 11 SCC 709).

24.In view of the above infirmities in the investigation and evidence and violation of the statutory provisions in conducting search and seizure proceedings by PW-1, PW-2 and PW-5 it is not safe to place reliance upon the testimonies of PW-1 to Pw-5. No doubt, PW-3 and PW-4 are the 11 independent Gazetted Officers but their evidence also does not inspired the confidence. PW-3 deposed that the contraband was not weighted in his presence and official seal was not affixed on the samples, but according to Pw-5, the Investigating Officer, he has affixed seals and the contraband was weighted. Though PW-3 deposed to have served Search

Memo-Ex.P-5 on the accused but PW-4 deposed in cross-examination that the Inspector of Police did not serve any search memo on the accused.

Search memo-Ex.P-5 does not contain signatures of the accused to show that it was served upon them.

25.In view of the above infirmities in the investigation and evidence and due to non-production of the contraband or the samples in support of the oral evidence of PW-1 to PW-5, it is not safe to place reliance upon their testimonies to base conviction of the accused, since PW-5 has failed to follow the required mandatory provisions of Section 42 and 57 of the

Narcotic Drugs and Psychotropic Substances Act, 1985 and benefit of doubt shall be extended to the accused in the said circumstances. I, therefore, hold that the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt. Point is answered against the prosecution.

26.In the result, the accused No.1, 2 and 4 are acquitted under Section 235 (1) of the Code of Criminal Procedure for the offence punishable under Section 8(c) read with 20 (b) of the Narcotic Drugs and Psychotropic

Substances Act, 1985. The bail bonds of the accused shall stand cancelled, after expiry of appeal time. Since the accused did not make any claim over the properties MO-1 to MO-11 and they denied the entire search and 12 seizure proceedings, MO-3 to MO-9 shall be confiscated to the State. The

DCM vehicle bearing No.AP-24-X-4533 shall be returned to the registered owner of the vehicle since the seizure of contraband is not proved satisfactorily. MO-1, 2 and 10 shall be destroyed after expiry of appeal time.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by

me in the open court on this the 15th day of March, 2023.

SPECIAL JUDGE FOR CASES UNDER NDPS ACT,

( METROPOLITAN SESSIONS JUDGE),

CYBERABAD, RANGA REDDY DISTRICT.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

PW-1 K.Chandra SekharNone PW-2 G.Nagaraju PW-3 Ch.Madhu Mohan PW-4 K.Aruna PW-5 G.Srinivas Kumar

EXHIBITS MARKED

FOR PROSECUTION: FOR DEFENCE:

Ex.P1 Admissible portion of the statement of A1-cum-NIL seizure panchanama, dated 26.09.2013 Ex.P2 Admissible portion of the statement of A2-cum- seizure panchanama, dated 26.09.2013 Ex.P3 Admissible portion of the statement of A3-cum- seizure panchanama, dated 26.09.2013 Ex.P4 Admissible portion of the statement of A4-cum- seizure panchanama, dated 26.09.2013

Ex.P5 Search proceedings dated 26.09.2023 Ex.P6 First Information Report dated 26.09.2013 Ex.P-7 Forensic Science Laboratory report dated 20.01.2014 13

MATERIAL OBJECTS MARKED: MO-1-Passbook of A1 MO-2- Licence of A3 MO-3-Samsung phone MO-4-Samsung duo phone MO-5-Nokia 100 MO-6-Samsung reliance MO-7-Samsung Duo MO-8- Carbon Phone MO-9-Nokia MO-10-Goods carrier permission MO-11- FDR for Rs.10,150/-

SPECIAL JUDGE FOR CASES UNDER NDPS ACT,

( METROPOLITAN SESSIONS JUDGE),

CYBERABAD, RANGA REDDY DISTRICT.

IN THE COURT OF THE I-ADDITIONAL DISTRICT JUDGE,

RANGA REDDY DISTRICT AT L.B.NAGAR

Present: R.Thirupathi, I-Additional District Judge, R.R. District at L. B. Nagar.

Friday, the 17th day of March, 2023

O.S.No.764 of 2014

Between:-

A.Narasimha Reddy s/o Late Narasimha Relddy, aged: 68 years, Occ: Business, R/o H.No.10-50, Flat No.101, Varka Residency, New Gaddiannaram colony, Dilsukhnagar, Hyderabad.

...Plaintiff

AND S.Srinivasa Rao s/o S.Raghavaiah, aged: 50 years, Occ: Business, r/so Flat No.304, Seshadri Towers, MIG 371, 372, KPHB Colony, Hyderabad. Present address: Flat No.502, Kaizan Residency, HIG 13 & 14, Phase-V, Kukatpally Housing Board colony, Kukatpally, Hyderabad.

… Defendant

This suit is coming before me for final hearing in the presence of Sri Ch.Shiva Shanker, Counsel for the Plaintiff and Sri B.Dhanaraj, Counsel for the Defendant and upon hearing both sides, perusing the material on record and having stood over the matter for consideration till this day, this court passed the following:-

J U D G M E N T

PRELUDE:

This is a suit for recovery of Rs.12,00,000/- (Rupees Twelve lakhs only) filed by the plaintiff against the sole defendant, basing on the pro-note purportedly executed by the defendant on 01.07.2011.

2.The averments in the plaint can be summarized as follows:- (i)D.Sriramulu Reddy is the friend of the plaintiff and the plaintiff and the defendant are partners and they are doing real- estate business since 2004 under their registered company in the 2 name and style "Srinivasa Avenue Private Limited". The wife of

D.Sriramulu Reddy is having relationship as well as friendship with the wife of the plaintiff and they later became friends in the year 2005 since they both belong to Reddy caste.

(ii)Out of such acquaintance and in good faith on D.Sriramulu

Reddy, the plaintiff used to provide hand loans to him with interest from 2005 onwards. On the request of the said D.Sriramulu Reddy and out of such friendship and relationship, he has been providing financial support to the defendant No.1 company, since the said

D.Sriramulu Reddy has been repaying the loan with interest with the knowledge of the defendant, he being the sole signatory.

(iii)The defendant is also aware of D.Sriramulu Reddy getting hand loans from the plaintiff and he has been arranging money for paying the amounts to the persons from whom he borrowed.

Believing the defendant as one of the partners of D.Sriramulu

Reddy, who stood as guarantor, the plaintiff lent Rs.12,00,000/- (Rupees Twelve lakhs only). There are continuous transactions between the plaintiff and D.Sriramulu Reddy and the defendant.

Earlier, the defendant repaid Rs.5,00,000/- (Rupees Five lakhs only) by way of cheques on 18.07.2011 and 25.01.2012. He also took hand loan on 30.06.2008 to a tune of Rs.20,00,000/- (Rupees Twenty lakhs only) and executed pro-notes, each pro-note for Rs.10,00,000/- (Rupees Ten lakhs only) in the name of the plaintiff. The defendant paid Rs.8,00,000/- (Rupees Eight lakhs only) in the year 2011 and he 3 executed two promissory notes in the name of the plaintiff for the remaining amount of Rs.12,00,000/- (Rupees Twelve lakhs only). One pro-note was executed for Rs.7,00,000/- (Rupees Seven lakhs only) and another pro-note was executed for Rs.5,00,000/- (Rupees Five lakhs only) both are dated 01.07.2011. The defendant did not pay any interest on the amount of Rs.20,00,000/- (Rupees Twenty lakhs only) from 30.06.2008 and took back the pro-notes.

(iv)Again in the month of February, 2012, the defendant requested the plaintiff to provide further loan for an amount of

Rs.20,00,000/- (Rupees Twenty lakhs only) for his urgent business needs promising to repay the said loans within six months with a monthly interest @ 36% per annum. The plaintiff lent said amount by cash on the request of the defendant in the month of February, 2012 in the presence of one D.Sriramulu Reddy, who is co-partner/friend of the defendant and the guarantor in pro-notes

dated 01.07.2011. The defendant promised to repay the amount of

Rs.20,00,000/- (Rupees Twenty lakhs only) and also amount of

Rs.12,00,000/- (Rupees Twelve lakhs only), including interest, within six months by selling away his property.

(v)When the plaintiff demanded the defendant to repay the loan amount along with interest, he failed to repay the same even after lapse of six months, in the month of August, 2013. He neither paid interest nor principal amount to the plaintiff. The defendant promised to pay the amount after selling away the property in the 4 month of August, 2013. He offered to register the land in the name of the plaintiff, but the plaintiff refused and demanded the defendant for payment of money. Later, the defendant issued two cheques in the name of the plaintiff. One cheque bearing No.643024 for Rs.10,00,000/- (Rupees Ten lakhs only) and cheque bearing

No.643025 for Rs.10,00,000/- (Rupees Ten lakhs only) dated 19.08.2013 totalling to Rs.20,00,000/- (Rupees Twenty lakhs only), drawn on Oriental Bank of Commerce, Srinagar colony, Hyderabad towards principal amount in discharge of the liability promising to pay interest in the month of September, 2013.

(vi)When the said cheques were presented for payment, they were dishonoured with endorsement as "funds insufficient". On coming to know about the same, the plaintiff approached the defendant along with D.Sriramulu Reddy and requested to pay amount, he got issued a legal notice under Section 138 of the

Negotiable Instruments Act, 1881 through his advocate on 04.09.2013. The defendant gave a reply dated 01.10.2013 with false averments pleading to have repaid loan of Rs.20,00,000/- (Rupees

Twenty lakhs only) obtained on 30.06.2008 and that the pro-notes were returned to him by the plaintiff. The defendant admitted his liability and the transaction between the plaintiff and the defendant and also issuance of cheques in favour of the plaintiff. He created a false story evading his liability to pay the amount. The plaintiff filed

CC No.71/2014 on the file of III-Special Court, Hasthinapuram under

Section 138 of the Negotiable Instruments Act, 1881 and in the said 5 case during cross-examination the defendant has admitted about his liability and execution of pro-note as pleaded by him. The defendant played fraud on the plaintiff and cheated him. Hence, the suit.

3.The defendant filed his written statement denying the material averments in the plaint and putting the plaintiff to strict proof of the same. he denied the transaction of borrowal and execution of pro-note for his business necessities and further pleading that the suit is barred by limitation and there is no cause of action to file the suit and thereby sought for dismissal of the suit with costs.

ISSUES AT TRIAL:

4.On the said rival pleadings, my predecessor framed the following issues for trial:

(i)Whether the defendant executed the suit promissory note?

(ii)Whether the Plaintiff is entitled to recover the suit amount from the defendant?

(iii)To what relief?

EVIDENCE:

5.The plaintiff examined its Manager as PW1 and marked Exs.A1 to A-5. On the other hand, the defendant examined himself as DW-1 and marked Ex.B-1.

6.Heard both sides. Perused the record.

REASONS FOR DECISION:

7. Issue No. 1 and 2:- The plaintiff seeks recovery of

Rs.12,00,000/- (Rupees Twelve lakhs only) from the defendant based 6 on the pro-note dated 01.07.2011 purportedly executed by the defendant in favour of the plaintiff for Rs.7,00,000/- (Rupees Seven lakhs only) and Rs.5,00,000/- (Rupees Five lakhs only) respectively and that the defendant failed to repay the said amount despite repeated demands and requests and also legal notice dated 24.06.2014.

8.The defendant resisted the suit claim by filing written statement denying the material averments in the plaint and putting the plaintiff to strict proof of the same and pleading that the said pro-notes are false and fabricated and no consideration was passed under the said pro-notes and that they were pressed into service with the help and in connivance with D.Sriramulu Reddy, who is one of the partners of the plaintiff with whom some blank pro-notes and cheques were kept in connection with business transactions and they were misused and filed in this false case.

9.The plaintiff is seeking recovery of money, the initial burden lies on the plaintiff to prove the transaction of borrowal and execution of pro-notes by the defendant, as alleged by the plaintiff.

10.The plaintiff examined himself as PW-1 and marked Ex.A-1 to

Ex.A-5. Ex.A-1 and Ex.A-2 are pro-notes purportedly executed by the defendant son 01.07.2011 while Ex.A-3 is the legal notice and Ex.A-4 and Ex.A-6 are the postal receipts and acknowledgment issued to the defendant. The plaintiff as PW-1 in his chief-examination, which is in the form of an affidavit, has testified to the averments in the plaint, 7 which are already referred to supra in extenso and it would suffice if a passing reference is made to the chief-affidavit, in a nutshell.

11.There were transactions between the plaintiff and D.Sriramulu

Reddy and D.Sriramulu Reddy used to take hand loans from the plaintiff and repay the same. The defendant came to be acquainted to him through the said D.Sriramulu Reddy, who stood as guarantor for the suit transaction. The defendant borrowed Rs.12,00,000/- (Rupees Twelve lakhs only) from the plaintiff promising to repay the same.

12.It is in the evidence of Pw-1 that the defendant paid the

principal amount to the plaintiff through cheque drawn on Oriental

Bank of Commerce dated 18.07.2011 for Rs.3,00,000/- (Rupees Three lakhs only) another cheque for Rs.2,00,000/- (Rupees Two lakhs only) on 25.01.2012 drawn on HDFC Bank in connection with hand loans took from him. He also deposed that after repayment of the said loan of Rs.5,00,000/- (Rupees Five lakhs only), the defendant again took hand loan of Rs.20,00,000/- (Rupees Twenty lakhs only) on 30.06.2008 as hand loan and executed two pro-notes each for a sum of Rs.10,00,000/- (Rupees Ten lakhs only) in his favour. Out of which, he paid Rs.8,00,000/- (Rupees Eight lakhs only) in the year 2011 and further executed two pro-notes in his favour for the remaining balance amount of Rs.12,00,000/- (Rupees Twelve lakhs only). One pro-note was executed for Rs.7,00,000/- (Rupees Seven lakhs only) and another pro-note was executed for Rs.5,00,000/- (Rupees Five 8 lakhs only) on 01.07.2011 and he did not pay any interest on the

principal sum of Rs.20,00,000/- (Rupees Twenty lakhs only) borrowed

on 30.06.2008. He also deposed that again in the month of February, 2012, the defendant requested him to provide further loan of

Rs.20,00,000/- (Rupees Twenty lakhs only) for his urgent necessities and promising to repay the said amount within six months with interest @ 36% per annum. He has paid the said amount as per his request in the month of February, 2012 to the defendant in the presence of D.Sriramulu Relddy, who is friend of the defendant and who stood as guarantor for the pro-note dated 01.07.2011. The defendant promised to repay the said amount of Rs.20,00,000/- (Rupees Twenty lakhs only) as the cheque amount and promissory notes of Rs.12,00,000/- (Rupees Twelve lakhs only), including interest within six months by selling away his property. Despite his repeated demands, he failed to pay the said amount of Rs.20,00,000/- (Rupees

Twenty lakhs only) as well as pro-notes amount of Rs.12,00,000/- (Rupees Twelve lakhs only). He deposed that after repeated demands, the defendant has issued cheque bearing No.643024 for

Rs.10,00,000/- (Rupees Ten lakhs only) on 19.08.2013 and another cheque bearing No.643025 for Rs.10,00,000/- (Rupees Ten lakhs only) on the same day totalling to Rs.20,00,000/- (Rupees Twenty lakhs only) towards discharge of his liability and when he presented the said cheque for payment, they were returned dishonoured. So, he filed a complaint under Section 138 of the Negotiable Instruments

Act, 1881. The defendant, after issuing legal notice, issued a reply 9 notice pleading repayment of loan amount of Rs.20,00,000/- (Rupees

Twenty lakhs only) on 30.06.2008 and also pro-notes were returned to the defendant by him. The defendant admitted his liability on the transaction between him and the plaintiff. Thus, the defendant has failed to pay the amount covered by the said pro-notes dated 30.06.2008.

13.In cross-examination, PW-1 admits that he has not paid the loan amount of Rs.12,00,000/- (Rupees Twelve lakhs only) to the defendant on 01.07.2011 when Ex.A-1 and Ex.A-2 pro-notes were executed. He further admits that he has not paid consideration amount of Rs.12,00,000/- (Rupees Twelve lakhs only) as mentioned in

Ex.A-1 and Ex.A-2. Thus, pro-notes under Ex.A-1 and Ex.A-2 are not supported by consideration even according to the plaintiff himself in his cross-examination. Admittedly, he did not file any other pro-note or cheques filed by the plaintiff, executed by the defendant showing lending of Rs.20,00,000/- (Rupees Twenty lakhs only) to the defendant, as pleaded and deposed by him.

14.Thus, the claim of the plaintiff under pro-notes-Ex.A-1 and

Ex.A-2, cannot be entertained since the said pro-notes are not supported by consideration, even according to plaintiff himself. He admits in the cross-examination that he has not filed any document to show that he has capacity to lend Rs.5,00,000/- (Rupees Five lakhs only) or more. It is doubtful as to whether the plaintiff is having sufficient financial capacity to lend such a huge amount in view of his 10 admission. He further admits that any complaint filed by him under

Ex.B-1 against the defendant under Section 138 of the Negotiable

Instruments Act, 1881 in CC No.71/2014, he did not refer to the suit transaction under Ex.A-1 and Ex.A-2-pro-notes.

15. Therefore, since pro-notes are not supported by consideration, they cannot be termed to be valid and enforceable negotiable instruments and as such, the plaintiff is not entitled to seek recovery of the said amount basing of such unenforceable negotiable instruments.

16.Further admittedly the plaintiff is doing money lending business for interest. He admitted to have lent moneys not only to the defendant earlier since 2005, but also to D.Sriramulu Reddy, who is one of his partners of himself as well as the defendant.

Admittedly, he does not possess valid money-lending licence for doing said money-lending business.

17.As rightly argued by the learned counsel for the defendant and also as has been held by the Hon'ble Apex Court in C.PANKAJAKSHI

AMMA v. MATHA MATHEW (2004 (12) SCC 83), wherein it was held that no decree can be passed on the unaccounted transactions, which were not reflected in the books of accounts and since the plaintiff failed to maintain the required registers under Section 9 of the

Kerala Money-Lenders Act and for not possession of valid money lending licence.

11 18.The defendant as DW-1 has denied the transaction of borrowal and execution of pro-notes and pleaded that the said pro-notes are not supported by consideration. Except eliciting that he did not issue any reply notice, nothing substantial could be elicited from him to establish the suit claim. He has pleaded that though the trial court convicted him for the offence punishable under Section 138 of the

Negotiable Instruments Act, 1881, he was acquitted by the appellate court. Thus, the defendant has rebutted the evidence of the plaintiff effectively.

19.In view of the aforesaid discussion of oral and documentary evidence and having regard to the admissions of the plaintiff himself admitted that no amount was lent under the pro-notes-Ex.A-1 and

Ex.A-2, they are not supported by consideration.

20.On a careful scrutiny and appreciation of the evidence let-in by the plaintiff vis-a-vis the defendant, it can be safely concluded, without any hesitation that the plaintiff failed to prove the transaction of borrowal of Rs.12,00,000/- (Rupees Twelve lakhs only) to the defendant and execution of pro-notes-Ex.A-1 and Ex.A-2 by him and that it was admitted by the plaintiff that the consideration was not paid under pro-notes-Ex.A-1 and Ex.A-2 and as such, the plaintiff is not entitled to seek recovery of the amount. Issue Nos.1 and 2 are answered against the plaintiff.

19. Issue No.3:- In view of my findings on issue Nos.1 and 2, the plaintiff is entitled to recover the suit amount and the suit is liable to be dismissed with costs.

12

RESULT:

20.In the result, the suit is dismissed, with costs.

Dictated to the Stenographer, transcribed and typed by him, corrected

and pronounced by me in Open court, on this the 17th day of March, 2023.

I-ADDITIONAL DISTRICT JUDGE,

RANGAREDDY DISTRICT.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

ON BEHALF OF PLAINTIFF:ON BEHALF OF DEFENDANT PW-1 A.Narasimha ReddyDW-1 S.Srinivasa Rao

EXHIBITS MARKED

ON BEHALF OF PLAINTIFF: Ex.A-1 Copy of promissory note for Rs.7,00,000/- dated 01.07.2011 Ex.A-2 Copy of promissory note for Rs.5,00,000/- dated 01.07.2011 Ex.A-3 Legal Notice dated 23.06.2014 Ex.A-4 Postal receipt dated 24.06.2014 Ex.A-5 Postal acknowledgment card

ON BEHALF OF DEFENDANT: Ex.B-1 Certified copy of complaint filed u/s 200 Cr.P.C before XI-MM LB Nagar.

I-ADDITIONAL DISTRICT JUDGE,

RANGAREDDY DISTRICT.

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE

RANGA REDDY DISTRICT AT L.B.NAGAR

PRESENT: Sri.R. Thirupathi, Metropolitan Sessions Judge – cum – I Addl.District Judge, FAC Principal District Judge, Ranga Reddy District.

Monday, the 11th day of April, 2022

Tr.OP. No. 64 of 2022

Between:

1.Gurrala Mallesh

2.Gurrala Buchamma

3.Gurrala Raju

4.Gurrala Jeethaiah

5.Gurrala Mahesh

6.Gurrala Ramesh … Petitioners

AND

1.Rajaiah Kasam

2.Ankathi Rajamouli

3.M/s.Sunyuga Infra Private Limited … Respondents

IN THE MATTER OF O.S.No.647/2021

PENDING ON THE FILE OF PRINCIPAL JUNIOR CIVIL JUDGE,

RANGA REDDY DISTRICT AT MEDCHAL

Between:

1. Rajaiah Kasam

2.Ankathi Rajamouli

3.M/s.Sunyuga Infra Private Limited … Plaintiffs

AND

1.Gurrala Mallesh

2.Gurrala Buchamma

3.Gurrala Raju

4.Gurrala Jeethaiah

5.Gurrala Mahesh

1.Gurrala Ramesh …. Defendants

This petition is coming before me on 29.03.2022 for final hearing in the presence of Sri P.Krishna Reddy, counsel for petitioners, Sri A.Ram Mohan Reddy, counsel for respondents 1 to 3, upon perusal of the material on record and the matter having heard and stood over for consideration till date, this Court passed the following:

Tr.OP.64 of 2022 Page No. 2 of 8

O R D E R

1.This application is filed under Section 24 of the Code of Civil

Procedure by the petitioners, who are defendants in O.S.No.647/2021 on the file of the Principal Junior Civil Judge, Ranga Reddy District at

Medchal, for transfer of the said suit from that court to any other competent Junior Civil Judge Court within the jurisdiction of this court.

2.(i) It is stated in the petition that the respondents-plaintiffs filed

O.S.No.647/2021 for perpetual injunction in respect of the suit schedule

property comprised therein along with an Interlocutory Application seeking interim injunction with false and frivolous allegations and they have been making illegal constructions in the house site owned by the petitioners- defendants, without obtaining prior permission from the concerned authorities and without filing any sketch map showing the layout plan and other necessary documents for conversion of agricultural land into non- agricultural land obtained from the competent authority. No documentary evidence is adduced by the plaintiffs in the said suit with regard to the permission for construction of buildings and also layout permission and the survey sketch map. As such, the suit itself is not maintainable either in law or on facts and the plaintiffs did not follow the procedure prescribed for furnishing all the documents including the electronic record. Though the said irregularities and violations were brought to the notice of the learned

Principal Junior Civil Judge at Medchal and also the factum of not

furnishing those documents to the petitioners or their counsel, including copies of C.Ds., and other electronic equipment for the purpose of arguing the matter, but the court fixed the date for hearing the Interlocutory

Application in the month of March 2022 in the presence of the petitioners

Tr.OP.64 of 2022 Page No. 3 of 8 and their counsel and after giving the said date by the court, the petitioners left the court premises. Later, the court has changed the said date of adjournment from the month of March 2022 to the very next day without hearing the petitioners and to their surprise. The petitioners could not understand as to why the court has pre-poned the case from the month of

March 2022 to the immediate next day.

(ii) The said attitude of the court caused apprehension in the mind of the petitioners that the court is being influenced by the plaintiffs. Though the counsel for the petitioners requested the court to direct the plaintiffs to furnish the documents relied upon by them, the court did not incline to give such direction.

(iii) The court cannot change the date unilaterally, after the date was given and after the parties left the court, by advancing the date of hearing without the knowledge and consent of the petitioners or their counsel.

(iv) The petitioners apprehend that they cannot get fair hearing in the hands of the learned Principal Junior Civil Judge at Medchal and the said apprehension is further strengthened by the comments of the plaintiffs in publicly, proclaiming that he can manage anybody and get favourable orders. The petitioners counsel urged the court to direct the plaintiffs to submit the sketch map issued by the Revenue Divisional Officer while granting lay-out permission and conversion and copies of the sale deeds of all the defendants. Even they also informed the court that they are contemplating to file transfer petition. But the court has been insisting upon the petitioners-defendants to furnish the details of the transfer petition and the orders passed by the court regarding transfer of the case.

The Presiding Officer of the court is adjourning the matter day to day and

Tr.OP.64 of 2022 Page No. 4 of 8 conducting the proceedings every day, even during the pandemic situation.

The plaintiffs are influential persons and making hectic efforts to encroach into the lands of the petitioners and they are not being allowed to conduct land survey. The relevant documents were not furnished to them. But the learned Junior Civil Judge, in a hurried manner without observing the legal formalities, is very eager to pass orders in favour of the plaintiffs by giving short adjournments. If orders are passed in the Interlocutory Application without hearing the petitioners, it will cause irreparable loss and hardship to the petitioners. The conduct of the Presiding Officer in adjourning the matter day to day shows his biased mind. Therefore, it is just and expedient to transfer the case to any other court. Hence, this petition.

3.The respondents 1 to 3 filed a counter denying the averments in the petition and putting the petitioners to strict proof of the same and pleading that the petition itself is not maintainable and is liable to be dismissed in limini. It is further pleaded that the respondents filed I.A.1799/2021 seeking ad interim injunction restraining the petitioners-defendants from interfering into the petition schedule property. Since the time of filing the suit, the petitioners have been taking time on one or the other pretext and though they are insisting for disposal of the Interlocutory Application, but the petitioners have been postponing the same, without filing their counter and on their pressure, the petitioners filed their counter along with the docuemnts on 18.01.2022. Due to Covid-19 situation from 18.01.2022, the court took up the proceedings by virtual mode and adjourned the

I.A.No.1799/2021 to 20.01.2022 for hearing and the main suit was adjourned to 18.03.2022 for filing of the written statement. On 20.01.2022 instead of arguing the case, the earlier counsel took adjournment for change of advocate and the case was posted to 25.01.2022, on which date

Tr.OP.64 of 2022 Page No. 5 of 8 the new advocate appeared and filed vakalat and sought for adjournment making allegations against the Principal Junior Civil Judge apprehending bias in favour of the plaintiffs. The petitioners have been postponing the matter to obtain certified copies of the documents from the Revenue

Authorities and filed the present petition only to drag on the proceedings without any reason. All the documents were furnished to the petitioners along with the summons through their earlier counsel, who filed a detailed counter in I.A.No.1799/2021. So, it is crystal clear that after receipt of all the material papers and documents only, the said counter was filed. The said I.A stood posted to 20.01.2022 for hearing, while the suit stood posted to 18.03.2022 for filing of written statement. So, there is no question of changing the date of hearing by the Presiding Officer. The proceedings have been taking place in the presence of the counsel for both the parties through virtual mode. The allegation of preponement of the case and other allegations are false. The statement made by the petitioners against the court suspecting bias in favour of the plaintiffs is serious in nature, which would amount to contempt of court. With these pleas, the respondents sought for dismissal of the petition with exemplary costs.

4.Heard the counsel for the petitioners as well as the respondents.

Perused the record.

5.Now, the point for consideration is:

“Whether there are justifiable grounds for transfer of

O.S.No.647/2021 from the file of the Principal Junior

Civil Judge at Medchal, as prayed for?”

6.POINT: As allegations of bias are made against the learned Presiding

Officer, this court has called for remarks of the learned Presiding Officer.

Tr.OP.64 of 2022 Page No. 6 of 8

The Principal Junior Civil Judge at Medchal reported that when the suit was filed on 24.11.2021 along with I.A.No.1799/2021 under Order XXXIX

Rule 1 and 2 of C.P.C., an urgent notice was ordered and on 07.01.2022, the learned counsel for the petitioners reported urgency in the matter and wanted the Interlocutory Application to be listed in the cause list. On the same day, it was placed before the Presiding Officer and the counsel for the petitioners as well as the respondents were present when the matter was posted to 18.01.2022 for filing of counter. On 18.01.2022, counter was filed and the I.A., was posted for hearing on 21.01.2022. On the same day the suit was also listed and it was adjourned for filing of written statement to 18.03.2022.

7.The learned Presiding Officer further reported that since the proceedings have been taken up by virtual mode from 07.01.2022, due to covid-19 pandemic situation, only the urgent Interlocutory Applications and final hearing of the matters up to the year 2017 are being taken up and as urgency was reported in the Interlocutory Application, it was taken up. The urgent interlocutory applications are being given short dates, while the main matters are being posted to longer dates. So, two dates were given in the suit as well as in the interlocutory application. The same is evident from the docket proceedings. The learned Presiding Officer further pleaded that there is no basis for the apprehension of the petitioners herein, who are the defendants in the suit.

8.The learned Presiding Officer has transmitted docket proceedings in

O.S.No.647/2021 as well as in I.A.No.1799/2021 along with his remarks,

which revealed that, on 18.01.2022, the suit was adjourned to 18.03.2022 in view of covid pandemic situation, while I.A.No.1799/2021 was adjourned

Tr.OP.64 of 2022 Page No. 7 of 8 to 20.01.2022. From 20.01.2022 to 04.02.2022, the I.A., was adjourned from time to time in view of the pandemic situation and on 04.02.2022, since a memo was filed by the counsel for the petitioners stating that transfer petition was filed and stay petition is coming for hearing, the matter was adjourned to 10.02.2022. The said docket proceedings does not reveal any tampering or change of date of hearing by the learned Presiding

Officer either in the suit or in the interlocutory application, as alleged by the petitioners.

9. The petitioners did not place any other material before the court in support of their allegations against the Presiding Officer that he is biased in favour of the respondents-plaintiffs. The said allegations are baseless and without any substantive material. Instead of co-operating with the court for the expeditious disposal of the suit or proceedings, making allegations of this nature against the Presiding Officer cannot be countenanced and it is the duty of both the parties to assist the court for the expeditious disposal of the suit or proceedings including the interlocutory applications seeking interim injunction. Merely because the Presiding Officer is insisting for disposal of the said matters, without giving longer dates of hearing to facilitate one or other party, allegations of such nature of bias, cannot be inferred by the petitioners and it does not amount to bias.

10.Therefore, I do not find any justifiable grounds for transfer of the case as urged by the petitioners. However, since the petitioners expressed apprehension that they may not get justice in the said court, this court feels it just and expedient, in the interest of justice and fairness, to transfer this case, to avoid mud-slugging, by such parties against the Presiding

Officer, to mar his judicial career. Therefore, though the petitioners failed

Tr.OP.64 of 2022 Page No. 8 of 8 to establish valid and tenable grounds to transfer the case, for the said reasons, in order to protect the presiding officer from receiving such allegations in future, if he is allowed to conduct the proceedings in this case, I am of the opinion that the case deserves to be transferred to other

Junior Civil Judge Court at Medchal. The point is accordingly answered.

11.In the result, petition is allowed and O.S.No.647/2021 is ordered to be transferred from the file of the Principal Junior Civil Judge at Medchal to the file of the II Additional Junior Civil Judge-cum-XXII Additional

Metropolitan Magistrate at Medchal for disposal in accordance with law.

The Principal Junior Civil Judge at Medchal is instructed to transmit the entire case record in O.S.No.647/2021, duly indexed, to the court of the

II Addl.Junior Civil Judge at Medchal forthwith.

Dictated to the Stenographer, transcribed and typed by her, corrected and

pronounced by me in the Open Court on this the 11 th day of April, 2022 .

PRINCIPAL DISTRICT JUDGE

RANGA REDDY DISTRICT

Copies to:

1.Principal Junior Civil Judge, R.R.District at Medchal

2.II Addl.Junior Civil Judge, R.R.District at Medchal

1

IN THE COURT OF THE METROPOLITAN SESSIONS JUDGE,

CYBERABAD, L.B NAGAR, RANGA REDDY DISTRICT

Present : R.Thirupathi, Metropolitan Sessions Judge, Ranga Reddy District at LB Nagar.

Monday, the 13th day of March, 2023

NDSC No.86 of 2021

1.Name & description of:The State of Telangana through the complainantProhibition & Excise Inspector, Shamshabad, Ranga Reddy District.

2.Name & description of:Kandula Prem Kumar s/o late K.Srinivas, the Accusedaged: 21 years, Occ: Illegal salesof dry ganja, r/o H.No.3-9/6, Flat No.201, Sri SubramanyaSwamyResidency Apartment, Hydershakote, Bandlaguda Jagir Municipal Corporation, Gandipet mandal, R.R.District.

3.Cr. No. & name of the :No.54/2020ofExcisestation, Police StationShamshabad.

4.Offences charged against:under Section 8(c) read with Section 20 the accused (b) (ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

5.Plea of accused:Not guilty

6.Finding of the Court:Not guilty

7.Prosecution conducted by :Sri K.Raji Reddy, Addl Public Prosecutor

8.Accused defended by:Sri G.Satyendra Naik, Advocate

9.Sentence or Order:In the result, the accused is acquitted under Section 235 (1) of Code of Criminal

Procedure, 1973 for the offence punishable under Section 8(c) read with 20 (b) (ii)(B) of the Narcotic Drugs and

Psychotropic Substances Act, 1985. The accused shall be set at liberty forthwith, if he is not required in any other case.

MO-1-Sample of ganja, MO-2-Sample of 2 ganja, MO-3-Unspent sample of ganja and MO-4-Remaining contraband, shall be destroyed after expiry of appeal time and they shall be produced before the 'DrugDisposalCommittee',for destruction, as per rules.

This Sessions Case coming on this day before me for fnal hearing in the presence of Sri K. Raj Reddy, Additional Public Prosecutor and of Sri G.Satyendra Naik, Counsel for the Accused and having been heard and stood over for consideration till this day, this Court delivered the following:-

J U D G M E N T

The Prohibtion & Excise Inspector, Shamshabad fled charge sheet against the sole accused in cr.No.54/2020 for the offence punishable under Section 8(c) read with 20 (b) (ii)(B) of the Narcotic Drugs and

Psychotropic Substances Act, 1985.

2.The indictment against the accused, in brief, can be summarized as follows:-

(i)On 17.12.2020, on reliable information about illegal sale of ganja,

PW-2 (M.Vijayasarathi) and PW-3 (N.Srinivas) proceeded to the house of the accused at Hydersha kote, Bandlaguda jagir Municipal Corporation,

Ranga Reddy District. The accused was present in the house, who revealed his identity. After serving search memo, when the said fat was searched, they found one blue colour polythene cover, which contained 14 kgs of dry ganja. The said contraband was seized in the presence of PW-1 (G.Krishna Goud) and Kuna Prakash (LW-1) (since died), pursuant to the statement of the accused, under a cover of panchanama. Samples were drawn from the said contraband and sent for analysis, which were certifed to be ganja. The accused was arrested, after registering the case in

Cr.No.54/2020. After completion of investigation, charge sheet was fled.

3 3.The case was taken on fle as NDSC No.86 of 2021 against the accused by this court.

4.On the appearance of the accused before this Court, furnished copies of documents to the accused, as required under Section 207 of the

Code of Criminal Procedure, 1973.

5.After hearing the learned Additional Public Prosecutor and the counsel for the accused, a charge under Sections 8 (c) read withSection 20 (b) (ii) (B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 was framed, read over and explained to the accused in Telugu, who pleaded not guilty to the said charge and claimed to be tried.

6.The prosecution, in order to unfold its story, has examined PW-1 (G.Krishna Goud), one of the mediators for search and seizure proceedings,

PW2 (M.Vijayasarathi) and PW-3 (N.Srinivas), the Prohibition & Excise officials, who conducted search and seizure proceedings and investigating into the case.

7.After closure of the above prosecution evidence, the accused was examined under Section 313 of the Code of Criminal Procedure, 1973, with reference to the incriminating material appearing against him. The accused denied the incriminating material put to him and he did not propose to examine any defence witness.

8.Heard the learned Additional Public Prosecutor and the counsel for the accused. Perused the record.

9.The point for consideration is:

4

“Whether the prosecution is able to establish that the

accused has been in physical and conscious possession of

the contraband without licence or permit beyond all

reasonable doubt ?"

10. POINT: As stated already, the charge against the accused is that he was found in physical and conscious possession of 14 kgs of ganja without licence or permit.

11.The plea of the accused is one of total denial and false implication for statistical purpose.

12.The prosecution, in order to unfold its story, has examined PW-1 to

PW-3. PW-1 (G.Krishna Goud) is the mediator while PW-2 (M.Vijayasarathi) and PW-3 (N.Srinivas) are the Prohibition & Excise Officials.

13.At the very outset, I may state that PW-1 mediator, did not support the prosecution case and he denied to have been present and witnessed the panchanama proceedings and seizure of the contraband. Nothing could be elicited from him connecting the accused with the crime by the learned Additional Public Prosecutor in the cross-examination. So, the evidence of PW-1 does not help to prove the charge.

14.Now, we are left with the evidence of Pw2 and Pw3, who are the prohibition and excise officials. No doubt, they have deposed on oath about themselves proceeding to the place of offence on receiving information about illegal sale of ganja, to the house of the accused

Subramanya Swamy Residency Apartment, Hydershakote, Bandlaguda

Jagir Municipal Corporation, Gandipet mandal, on 17.12.2020 at 08:10

A.M., fnding the accused in the house and conducting search of the said 5 house after serving search memo-Ex.P-4 on the accused and later seizing 14 kgs of ganja under a cover of panchanama-Ex.P-5.

15.They have identifed MO-1 and MO-2 as sample, MO-3 as unspent portion of sample while MO-4 remaining contraband. Though PW-2 deposed to have served option memo-Ex.P-6 on the accused, but no personal search was conducted and nothing was seized during the said personal search. In cross-examination, PW-2 admits that sample was taken from the contraband directly without making the same into homogeneous. Admittedly, they did not take photographs and photographs and videograph of the search and seizure proceedings.

16.PW-3 admits in cross-examination that he has not recorded information in writing and he also did not examine the neighbours of the accused and he has not fled any document to show the ownership of the said house. There is a delay of 20 days in sending the samples to the laboratory. The seizure took place at Hydershah kote, Bandlaguda whereas the mediators were taken, who are the residents of Shanthi

Nagar, Hydershakote, Bandlaguda. They are not inhabitants of the place of search and seizure. Thus, PW-2 and PW-3 failed to follow the mandatory provisions of Section 100 of the Code of Criminal Procedure, 1973 in conducting search and seizure proceedings.

17.PW-2 and PW-3 did not record the information received by them in writing and submit the same to the superiors as required under Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985, which is a mandatory provision and failure to comply with the same, would vitiate the investigation and consequential trial.

6 18.Similar, PW-2 and PW-3 did not follow the mandatory provisions of

Section 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985 which stipulates that immediately after conducting search and seizure proceedings, PW-2 and PW-3 are required to submit a detailed report to the immediate superiors. There is no positive evidence let-in by the prosecution to show that the samples were preserved in intact till they were sent to the laboratory, since there is a delay of 20 days in sending the samples to the laboratory.

19.In view of the infrmities in the investigation and evidence of PW-2 and PW-3 and in view of the hostility of Pw-1, independent witness, it is not safe to place reliance upon the interested testimonies of Pw-2 and

PW-3 to base conviction of the accused. I, therefore, hold that the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt and consequently, I fnd the accused not guilty of the offence with the which he is charged.

20.In the result, the accused is acquitted under Section 235 (1) of Code of Criminal Procedure, 1973 for the offence punishable under Section 8(c) read with 20 (b) (ii)(B) of the Narcotic Drugs and Psychotropic Substances

Act, 1985. The accused shall be set at liberty forthwith, if he is not required in any other case. MO-1-Sample of ganja, MO-2-Sample of ganja,

MO-3-Unspent sample of ganja and MO-4-Remaining contraband, shall be destroyed after expiry of appeal time and they shall be produced before the 'Drug Disposal Committee', for destruction, as per rules.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by

me in the open court on this the 13th day of March, 2023.

METROPOLITAN SESSIONS JUDGE,

CYBERABAD, RANGA REDDY DISTRICT.

7

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PROSECUTION: FOR DEFENCE:

PW-1 G.Krishna GoudNone

PW-2 M.vijayasarathi

PW-3 N.Srinivas

EXHIBITS MARKED

FOR PROSECUTION: Ex.P-1 Signature of Pw-1 on Search Memo dated 17.12.2020 Ex.P-2 Signature of Pw-1 on Panchanama dated 17.12.2020 Ex.P-3 Signature of Pw-1 on Option Notice dated 17.12.2020 Ex.P-4 Search Memo dated 17.12.2020 Ex.P-5 Panchanama, dated 17.12.2020 Ex.P-6 Option Notice, dated 17.12.2020 Ex.P-7 Crime and Occurrence Report, dated 17.12.2020 Ex.P-8 Letter of Advise Ex.P-9 Rough sketch Ex.P-10 Chemical Analyst Reported Ex.P-11 Certifcate u/s 52 of the NDPS Act Ex.P-12 Inventory issued by the Magistrate u/s 52-A of the NDPS Act

FOR DEFENCE: -NIL-

MATERIAL OBJECTS

MO-1-Sample of ganja MO-2-Sample of ganja MO-3-Unspent sample of ganja MO-4-Remaining contraband

METROPOLITAN SESSIONS JUDGE,

CYBERABAD, RANGA REDDY DISTRICT.