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IN THE COURT OF THE I ADDITONAL DISTRICT & SESSIONS
JUDGE:: NALGONDA
(Dated this the 29th day of March, 2019)
Present: Sri S. Venkateswara Prasad,
I Addl. District & Sessions Judge Nalgonda.
SESSIONS CASE No. 6 of 2015
Name and description of Circle Inspector of Police, Nalgonda the complainant II Town Circle PS
Name and description of A-1 Borrothu Prakash, S/o. Late the accused Eshwar Raju, Age : 31 years, Caste : Munnurukapu, Occ : Car driver, R/o Butchirajupalem Village, NAD X roads, Vishakapatnam District.
A-2 Karrothu Bhanu Chandra, S/o. Venkata Rama Rao, Age : 32 years, Caste : Munnurukapu, Occ: Business, R/o. H.No. 33-7-7, Barishtarvari Street, Seetharampuram, Vijayawada-II.
A-3 Maddula Venkata Shiva Shekhar, S/o. Tatarao, Age : 28 years, Caste : Vyshya, Occ : Medical shop worker, N/o. Kandipadu Village of Vijayawada Town, now at Mekabanda park Bazar, Khammam.
A-4 Manthri Shiva Sai Varaprasad, S/o. Ram Mohan Rao, Age : 30 years, Caste : Vyshya, Occ : Car driver, R/o. Kothapalem Village of Gopalapatnam Mandal of Visakhapatnam District. N/o. H.No. 14-73, Patha Gajuwaka, Panthulugari Meda.
Offences charged Under Sec. 20 (b) of Narcotic Drugs & Psychotropic Substances Act, 1985.
Plea of the accused Pleaded not guilty
Finding of the Court Found not guilty 2
Sentence or Order The accused Nos. 1 to 4 are found not guilty for the offence under Sec. 20 (b) of Narcotic Drugs & Psychotropic Substances Act, 1985. and accordingly, they are acquitted under Section 235(1) of Cr.P.C., for the said offences. Bail bonds of the accused shall stand cancelled.
MO-1 ganja shall be destroyed, MOs. 2 & 3 i.e. Celkon company cell phone and ID proof driving license of A-1 shall be returned to him, and the unmarked property i.e. Samsung Dros company cell phone and driving license of A-2, Samsung company cell phone and pass port of A-3 and Celkon company cell phone and driving license of A-4 shall be returned to them after expiry of appeal time. The Innova Car bearing No. AP-01-P0018 which was already given to A-1 for interim custody vide Crl.MP No. 246/2013,
Dt : 23.11.2013 of this Court shall
stand good.
This Sessions Case is coming before me today for disposal in the presence of Sri T. Chandra Sekhar Reddy, Advocate for the accused and Sri N.Gopalakrishna, Addl. Public Prosecutor and having stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
1. The Circle Inspector of Police, Nalgonda-II Town Circle filed charge sheet against A-1 to A-4 under Sec. 20 (b)(ii)(c) of Narcotic
Drugs and Phychotropic Substances Act, 1985 on the following allegations.
On 19-09-2013 at about 12..00 hours the then SI of Police,
Nalgonda II Town G. Vijaya Bhaskar Reddy, (LW-8) was conducting vehicle search in front of Nagarjuna Degree College, Hyderabad road, 3
Nalgonda. At about 1.00 p.m., he stopped one Innova Car bearing
No.AP-1-P-18 and found cartons containing “Kannabis” (Ganja). He immediately sent requisition to Tahasildar (LW-1) to visit the scene of offence for conducting seizure panchanama and recording confession from the accused. Accordingly the Tahasildar visited the scene of offence, questioned the accused A-1 to A-4, A-1 informed that he purchased Ganja from Araku with the help of other accused with an intention to sell and on the way he picked up the other accused in his car. 97 Kgs ganja and Innova car bearing No. AP-1-P-18, four mobiles along with SIM cards were seized, 26 samples were drawn which are sealed and the seal chits were affixed on each paper under cover of seizure panchanama report from A-1 to A-4. A case in Cr.No.323/2013 under Sec. 20 (b) (ii) of Narcotic Drugs and Psychotropic Substances Act 1985 was registered. The property was sent to FSL and the FSL report opined that after analyzing Item Nos. 1 to 26 Cannabinol an active constituent of well grown cannabis plant commonly known as “Ganja”, which is considered as a Narcotic substance is found in them. The morphological characters of leaves, flowering tops and seeds in the above items are found to be that of cannabis sativa”. The investigation revealed that A-1 purchased Ganja at Paderuv village, Visakhapatnam, packed it in 26 covers and picked up the other accused on the way at
Vijayawada and Suryapet and tried to sell the same which was recovered and they are liable to be punished under the above said section of law.
2. This case is taken on file under Sec. 20 (b) (ii) of Narcotic Drugs &
Psychotropic Substances Act, 1985. The accused A-1 to A-4 are examined under Sec. 228(1)(b) Cr.P.C for the charge under Sec. 20 (b) 4 of Narcotic Drugs & Psychotropic Substances Act, 1985 and the accused denied the said offences and pleaded not guilty.
3. PWs. 1 to 8 were examined for prosecution and got marked
Exs.P.1 to P.3 and MOs-1 to 3 are marked.
4. After completion of the prosecution evidence the accused No.1 to 4 were examined under Sec.313 Cr.P.C by explaining the incriminating material appears against them from the prosecution witnesses and the accused denied the same and reported no defence evidence.
5. Heard arguments. The counsel for accused submits that the accused are falsely implicated without any basis, the search and seizure were not conducted on proper lines as per the section of law under NDPS
Act. There are no independent seizure witnesses and all are
Government witnesses who naturally support the case of prosecution.
He further argued that the search and seizure is quite contradictory and the evidence of Tahasildar is not supported with the evidence of investigating officers. The samples were not drawn properly. The seizure was not made properly even if the prosecution case is believed the accused are liable to be acquitted.
6. Addl. P.P. submits that the search and seizure was made by the
Tahasildar who has drawn the samples by affixing the seals in the possession of other police who inspected the vehicle, the FSL report has corroborated with the evidence of Tahasildar and other police constables who speak about search and seizure and that the property was found to be ganja and prosecution established their case beyond doubt.
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7. Point for determination is, whether the prosecution is able to establish the guilt of the accused beyond reasonable doubt ?
POINT :-
8. The Tahasildar who enquired the accused and seized the property was examined as PW-1. It is his evidence that as per the letter addressed by SI of police to him regarding the alleged possession of Ganja, he went to scene of offence where he noticed Innova Car and Ganja in it and four persons whom he identified as A-1 to A-4. The accused stated before him that they purchased 97 Kgs ganja at Paderu for Rs.26,000/- and carrying in the car and on the way A-2 and A-3 were picked up at
Vijayawada and Suryapet. He says the Car bearing No. AP-0118, the ganja was preserved in two carton boxes in the dickey. One carton box labeled as LG TV Company wherein 24 plastic covers weighing 3.7 Kgs with ganja and small box labeled as Panasonic Cooker Box containing two covers weighing 3.750 Kgs, ganja. The ganja was in 267 covers. 200 grams sample was drawn from each cover and cell phone and ID proof of A-1 was seized, the cell phone and ID proofs of other accused were also seized. MO-1 is the ganja, MO-2 is the cell phone and MO-3 is driving license of A-1 seized. Ex.P.2 is the recovery panchanama.
9. Prosecution examined the other police constables in support of their case who are said to have witnessed the recovery. PW-2 is the
Constable who says that on 19.09.2013 they stopped the vehicle, opened the dickey and found two carton boxes wherein ganja was seized under cover of Ex.P.2. Mos. 1 to 3 are the properties recovered. The evidence adduced by other police constables PWs. 3 to 5 are in tune with that of 6 the evidence of PW-2. The MRI, Nalgonda says that he acted as a panch witness and he signed Ex.P.2. He says the property was seized from
Innova car bearing No. AP-1-P-18. He identified only two persons i.e.
A-1 and A-2 and says the name of A-4 is Prakash (though the name of
A-1 is Prakash) he could not identify the remaining two persons.
10. The then SI of police deposed that while he was checking the vehicle at N.G. College, Nalgonda, he found the Innova Car on 19.09.2013 and after noticing four persons (identified as A-1 to A-4) he gave notice to the said persons informing about their right of MRO or
Gazetted officer to conduct panchanama and then gave requisition to
PW-1. Basing on the confessional panchanama Ex.P.3 he issued FIR
Ex.P.3 and entrusted investigation to the then Inspector of Police who is examined as PW-8.
11. PW-8 stated that he examined PWs. 1 to 5 during investigation and sent the property to FSL, recovered the property i.e. Innova car and cell phone with SIM Cards. After receipt of FSL report he filed charge sheet against A-1 to A-4 under Sec.20 (b)(ii)(c) of Narcotic Drugs and
Psychotropic substances Act, 1985.
12. The prosecution case is mainly based on search, seizure and recovery of ganja from alleged possession of the accused. Therefore it has to be seen whether the prosecution is able to establish the same with cogent and clear evidence. In these type of cases the search and seizure must be transparent to attract the offence against the accused. First of all, according to prosecution the property was found in the dickey of the 7 car in which the accused persons were travelling. Therefore presumption is drawn against them that property was in possession of the accused. A- 2 and A-3 were joined on the way in the car owned by A-1. It is not clear whether they were travelling in the car with the knowledge that the ganja was being transported in the dickey or without knowledge. PW-5 identified only two persons but not the remaining persons though he is a panch witness. As rightly contended by the learned counsel for accused, no independent witness acted as witness but all are Government officials.
It is an admitted from the evidence of PW-1 and the prosecution that it is a busy locality adjacent to a college.
13. Coming to the evidence adduced by PW-1, it has to be seen whether it is corroborated with the other evidence. First of all, the vehicle number is spoken differently by different witnesses. PW-1 the
Tahasildar says that the vehicle number is AP-0118 (did not furnish the complete number). PW-2 says the vehicle number is AP-1-P-18. The evidence of PWs. 3 & 4 is also similar with regard the vehicle number. As per the evidence of PW-6 the vehicle number is AP-01-P-0018. PWs. 7 & 8 speak about the same number. Coming to the charge sheet filed by police after their thorough investigation, the vehicle number is furnished as AP-1-P-18. The registration number of the vehicle in which the ganja was allegedly transported is not correctly furnished, nor the vehicle was got marked by prosecution.
14. The evidence adduced by PW-1 if further analyzed, he stated that he did not fix his official seals in property seized and again gave a different version stating that he has no idea. From this, it has to be 8 inferred that there is no proper seizure and the possibility of police obtaining the signature of Tahasildar at later stage could not be ruled out. As seen from the evidence, it appears the name and description of the person who prepared the panchanama report and seized the property is not explained to the accused. PW-1 admits that he did not state before police that the accused informed to him that ganja was purchased at
Araku with intention to sell at higher price though his statement was recorded by investigating officer. He says there were several persons observed the recovery but no one was requested to sign in the panchanama report. Admittedly there are no slips affixed on the property seized i.e. Mos. 1 to 3 containing the seizure of panch witnesses.
He admits that the property was not seized in polythene bags and the polythene bags in which the property was brought does not contain the slips containing the signatures of witnesses. No proper inventory was prepared according to PW-1. The Innova Car in which Ganja was transported is not marked ; similarly, the cell phones allegedly seized from A-2, A-3 and Driving license, Passport etc., were not marked.
Prosecution has no explanation for non-marking of some of the material items.
15. Coming to the evidence of investigating officer PW-7 says that he gave requisition to Tahasildar for seizure as he conducted searches and stopped the vehicle in which he found ganja with four persons. He registered the FIR after the panchanama report was prepared and property was seized. Though he was present at the scene of offence and stopped the vehicle and the accused and he was part of the search and investigation, and he being a relevant witness by summoning the MRO, still he clearly says during cross-examination that ganja was not seized 9 in his presence. He further says that he was not at all present at the scene of offence during the proceedings under Ex.P.2. He admits that he did not personally search the accused. He could not say as to whom
PW-1 handed over the ganja as it was not done in his presence. What was the incriminating material that could be elicited from the evidence of
SI of police who is part of the investigation and who is the rightful person to speak about proper search and seizure conducted during search, is not explained by the prosecution. Similarly the another investigating officer
PW-8 to whom the file was handed over, he simply says that he recorded the statements of PWs. 1 to 5, deposited the property into Court and filed charge sheet against the accused after receiving FSL report. He did not visit the scene of offence. He admits that the panchanama report does not contain any endorsement regarding identity of PW-1 explained to the accused before search and seizure, while PW-1 says he was examined by the investigating officer. PW-8 says he did not examine PW-1. The
FSL Report is not marked by prosecution. There is no explanation for ignoring such relevant piece of evidence.
16. Coming to the search-cum-seizure report under Ex.P.2 as rightly contended by counsel for accused, Page Nos. 1 to 3 were written by different person, whereas at page Nos. 4 to 6 appears to have written by another person. The handwritings and ink in Page No.1 totally differs from the handwriting and ink of the scribe in Page Nos. 4 to 6.
Therefore, it is clear that the person who wrote page Nos. 1 to 3 did not write the remaining three pages. Further, the name of second panch witness i.e. LW-2 D. Ramesh is added with different ink and handwriting in the details of panch witnesses mentioned in the first page. Similarly, 10 the name of the Tahasildar who conducted panchanama is also appears to have subsequently added in the top of the first page with different handwriting and ink. Therefore, analyzing the entire oral and documentary evidence, I am of the considered view that the search and seizure was not conducted on proper lines and I have no hesitation to hold that prosecution could not establish their case beyond reasonable doubt and the accused are entitled for benefit of doubt.
17. During the course of arguments the Addl. P.P. referred a decision of High Court of Punjab and Haryana at Chandigarh in MRC No. 2 of 2016, Dt : 19.03.2019 in support of his contention that confessional statement before police officer who recovered based on confession is valid. The said citation referred is a case for the offences under Secs.
302, 376-D, 366, 201 r/w. Sec. 120-B of IPC and moreover the facts and circumstances of the above referred case are totally different, do not cover the facts of the present case and hence not applicable to the case on hand.
18. The learned counsel for accused relied on a decision reported in
Bahadur Singh Vs. State of Madhya Pradesh and Another (AIR 2002
Supreme Court 289) wherein it is held that when there are serious discrepancies in the evidence in respect of recovery and seizure, it has to be held that the prosecution failed to prove their case. The facts and circumstances of the present case fall under the principle laid down in the above referred decision and the accused are entitled to take shelter of the above referred decision. Therefore, I find the accused A-1 to A-4 are not guilty for the charge under Sec. 20 (b) of NDPS Act. The point is 11 accordingly answered in favour of the accused and against the prosecution.
19. For the aforesaid reasons, A-1 to A-4 are found not guilty for the offence under Sec. 20 (b) of Narcotic Drugs & Psychotropic Substances
Act, 1985 and accordingly they are acquitted under Sec. 235 (1) of
Cr.P.C. for the said offence. The bail bonds of the accused shall stand cancelled after six months. MO-1 ganja shall be destroyed, MOs. 2 & 3 i.e. Celkon company cell phone and ID proof driving license of A-1 shall be returned to him, and the unmarked property i.e. Samsung Dros company cell phone and driving license of A-2, Samsung company cell phone and pass port of A-3 and Celkon company cell phone and driving license of A-4 shall be returned to them after expiry of appeal time. The
Innova Car bearing No. AP-01-P0018 which was already given to A-1 for interim custody vide Crl.MP No. 246/2013, Dt : 23.11.2013 of this Court shall stand good.
Dictated to the Stenographer Grade-I, transcribed and typed by
him, corrected and pronounced by me in the open Court on this the 29th day of March, 2019.
I Addl. District & Sessions Judge, Nalgonda.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION
Pw-1 LW-1 M. Krishna Reddy Complainant
PW-2 LW-2 K. Narsimha Reddy Assisted IO
PW-3 LW-3 K. Narsimha Assisted IO
PW-4 LW-4 K. Anand Assisted IO 12
PW-5 LW-5 G,. Venkat Reddy Assisted IO
PW-6 LW-6 K. Rajinikanth Panch for confession of seizure PW-7 LW-8 G. Vijaya Bhaskar reddy 1st IO
PW-8 LW-9 T. Manohar Reddy 2nd I.O.
WITNESSES EXAMINED ON BEHALF OF THE ACCUSED
-Nil-
EXHIBITS MARKED ON BEHALF OF THE PROSECUTION
Ex.P-1 is the requisition from PW-7 Ex.P-2 is the recovery panchanama Ex.P-3 is the FIR
EXHIBITS MARKED ON BEHALF OF THE ACCUSED
-NIL -
MATERIAL OBJECTS
MO-1 is Ganja
MO-2 is Celkon company cell phone of A-1
MO-3 is ID proof driving license of A-1.
I Addl. District & Sessions Judge, Nalgonda.