THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.2624 of 2004 BETWEEEN: Orusu Ramulu … Appellant AND State through Station House Officer. … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2624 of 2004 JUDGMENT: The appellant/accused was convicted by the lower Court under Section 8(c)/20(b)(ii)(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) and was sentenced to rigorous imprisonment of two years and fine of Rs.100/-. Questioning the same, the accused filed this appeal. It is alleged that on 08.11.2003, the accused was found in possession of 3.400Kgs. of ganja in MOs.2 and 3 plastic carry bags kept in MO.1 zip bag. Plea of the accused is one of total denial and not guilty. After trial, the lower Court found him guilty of the charge. 2. It is contended by the appellant’s counsel that the accused/appellant is an innocent person and that he was falsely implicated in this case and that investigation of the case is not proper and is not in accordance with law. 3. Out of the two mediators in Ex.P3-mediator’s report, PW1 turned hostile to the prosecution. PW1 was a Mobile Tiffin Vendor. The other mediator, PW2 supported the prosecution case. He was working in Mahalakshmi Wines, Vijayawada. PW3 is the then Sub-Inspector of Police, Satyanarayanapuram Police Station. It is his evidence that on 08.03.2003 at about 7:30P.M., he received telephone message from S.Nabi, Police Constable No.137 of Government Railway Police Station, about finding a person in the bus-stop opposite to Railway Station with baggage said to contain contraband and that thereupon, he along with his staff having secured PWs 1 and 2, proceeded to the bus-stop and found the accused there with MO.1 zip bag and that he took the accused into custody along with MO.1 and questioned him who disclosed his name, identity and address and stated he was carrying ganja in two folders, Mos.2 and 3 in that zip bag and that when the accused expressed that he may be produced before the Gazetted Officer, he took the accused to Inspector of Police, Government Railway Police Station, Vijayawada in Railway Station premises. He says that before taking him to Inspector of Police, he took the accused into custody along with Mo.1 bag under the cover of Ex.P3- mediators report in which the mediator’s signed and the accused affixed his thumb impression. PW5 is Inspector of Police, Government Railway Police, Vijayawada, before whom the accused was produced by PW3 along with contraband and mediators. It is evidence of PW5 that he questioned the accused who disclosed his name, identity, etc and stated that he was carrying ganja for resale at Vijayawada. PW5 says that in the presence of mediators, he opened MO.1 zip bag and Mos 2 and 3 plastic bags in that zip bag and that those plastic carry bags contained ganja and that he got the contraband weighed and found the same to be 3400 gms. In the presence of mediators PWs 1 and 2, PW4 collected two samples as per Mos.4 and 5, packed, sealed and affixing labels to the same. PW2 admits his signature not only in Exs.P3 and P4 but also on slips affixed on Mos.4 and 5. PW5 deposed that PW3 seized the ganja and arrested the accused and took the samples under the cover of Ex.P4-mediator’s report. 4. It is contended by the appellant’s counsel that there is no compliance of Section 50 of the Act in this case. Compliance of Section 50 of the Act is mandatory in the case of personal search. But, there is no personal search of the accused in this case and there was only search of his baggage Mos.1 to 3. Therefore, Section 50 of the Act has no application herein. In any event, PW3 produced the accused along with contraband in the presence of PW5, who is Inspector of Police and who is also a Gazetted Officer and in his presence, Ex.P4 mediators report was prepared. Thus, even though it is not required to comply with Section 50 of the Act in this case, PW3 complied with the same. 5. It is contended by the appellant’s counsel that evidence of PW2 cannot be believed. In cross-examination, PW2 deposed that he does not know contents of Exs.P3 and P4 and that he only signed four signatures i.e. in two mediators report and two slips affixed on the samples. Since he is only a worker in a wine shop, he might not have bestowed his attention to the contents of the mediators reports- Exs.P3 and P4. But in his examination-in-chief, he gave the entire contents of Exs.P3 and P4 mediator’s reports in his own way by narrating the facts. PW3 picked up PW2 while proceeding from his Police Station to the spot located in front of railway station. It is contended by the appellant’s counsel that the person who gave information to PW3 by phone, is not examined. Non-examination of the informant is in no way fatal to the prosecution case. The prosecution has proved arrest of the accused and seizure of contraband from his possession in Mos.1 to 3 bags by examining PWs 2 and 3 and also by examining PW4 in whose presence the accused was produced along with Mos.1 to 3. Simply because PW2 did not know contents of Exs.P3 and P4 and did not bestow his attention to weighing of the contraband, it cannot be said that evidence of PW2 cannot be believed. 6. Since the accused was arrested in a public place like bus stop opposite to Vijayawada Railway station, Section 42(2) of the Act has no application herein. On scrutiny of the above material evidence, it is evident that the lower Court considered the entire material on record in the right perspective and came to a correct conclusion in favour of the prosecution. There are no valid or tenable grounds either on facts or in law to interfere with finding of guilt recorded by the lower Court against the accused/appellant. 7. In the result, the Criminal Appeal is dismissed. ______________________________ JUSTICE SAMUDRALA GOVINDARAJULU Dt:18.10.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2624 of 2004 Dt:18.10.2011 ysk