HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL No. 2229 of 2004 O R D E R: This appeal arises out of the conviction and sentence dated 20.09.2004 passed in SC No. 29 of 2003 on the file of the I Addl. Sessions Judge, Karimnagar. 2. The appellant herein was prosecuted for the offence punishable U/Sec.8(b) r/w.20(a)(i) of N.D.P.S. Act ( for short ‘the Act’) alleging that on 20.11.2009 on receiving reliable information about the rampant cultivation of ganja, P.Ws.1,4,5 and 6 proceeded to Mallannapalli village and secured the presence of P.Ws.1 and 2 and inspected the land in Sy.No. 404/F belongs to the accused and they found ganja plants grown upto 5 to 6 feet among the cotton crop. They plucked the ganja plants which numbered 128, with the help of labour and drawn samples and sent the same for chemical examination and destroyed the remaining ganja plants. A panchanama was drafted and signatures of panch witnesses were obtained on the panchanama and also on the samples. The accused was arrested on 12.12.2001 and was remanded to judicial custody. A certified copy of pahani patrika was obtained from the Dy. M.R.O. showing the possession of the accused over the said land. On receipt of the Chemical Examiner’s report, who opined that the samples are ganja trees, the police filed charge sheet against the accused. 3. The learned Sessions Judge took the case on file and framed a charge against the accused for the offence punishable u/Sec.8(b) r/w.20(a)(i) of the Act, read over and explained to him in Telugu for which he pleaded not guilty. The prosecution, in order to establish the charge framed against the accused, examined P.Ws.1 to 6 and got marked documents Ex.P1 to P7 and also M.O.1. No defence witness was examined on behalf of the accused. Taking into consideration of the oral and documentary evidence, the learned Sessions Judge found that the prosecution could able to establish the offence punishable u/Sec. 8(b) r/w. 20(a)(i) of the Act against the accused and convicted and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for six months. Aggrieved by the same, the present appeal has been filed. 4. Now the point for consideration is whether the prosecution could prove the guilt of the accused for the offence punishable u/Sec. 8(b) 20(a) (i) of the Act beyond reasonable doubt ? 5. The learned counsel for the appellant has pleaded that both the panch witnesses have turned hostile and did not support the case of prosecution and therefore, the seizure of the samples from the land of the accused was not established and further pleaded that the investigation has not conducted search in accordance with the provisions of Secs. 42(1) & (2) and 57 of the Act and for non-compliance of the provisions of the Act, the accused is entitled for acquittal. In support of his contention, he relied upon the decision of this Court in Ankireddy Ramana Reddy V. State of A.P.[1] wherein it was held that though a crime was registered on the basis of the panchanama, no material was placed by the witness to show that any report was sent to the superior officers regarding the seizure of ganja and arrest of the appellant and that the absence of such report is a clear indication that the police failed to comply with the requirements of Sec. 57 of the Act and therefore, the trial is vitiated on this count also. 6. In the decision in Karnail Singh V. State of Haryana[2] wherein the Apex Court held that the provisions of Sec. 42(1) of the Act empowered the officer if he is a prior information given by any person that should necessarily be taken down in writing but if he has reason to believe from his personal knowledge that offence under chapter IV of the Act has been committed or material which may furnish evidence of commission of such offence are suffered in any building etc., he may carryout the arrest or search without warrant between sunrise and sunset and his prosecution case does not mandate that he should record his search of seizure. The apex court has also considered to what extent the provisions are mandatory and contravention of the same would effect the prosecution case and vitiated the prosecution case and held that U/Sec.42(2) of the Act such empowered officer had takes down information in writing recorded the grounds under the proviso to Sec.42(1) of the Act should forthwith send copy thereof to immediate officer superior. If there is a total non-compliance of this provision the same affects the prosecution case and to that extent it is mandatory. But if there is a delay where it was undue or whether the same has been explained or not will be a question of fact in each case. If the information is received when the police officer was in the police station with sufficient time to take search and if the police officer fails to record in writing the information received or fails to send the same to the superior officers, then it will be a suspicious circumstance being clear violation of Sec.42 of the Act. Similarly when the police officer does not record the information at all and does not inform the official superior officers at all then also it will be a clear violation of Sec.42 of the Act. 7. In the light of the above decisions, it has to be examined whether in this case the Investigation officer has complied with the provisions of Sections 42 (1) & (2) of the Act. 8. The Investigating Officer was examined as P.W.5 and he has stated that on 20.11.2001 on seeing information through the newspaper proceeded to the fields of the accused along with his staff and M.R.O. Jammikunta and secured the presence of Panch witnesses P.Ws.2 and 3 and proceeded to Sy.No. 404/F which belongs to the accused to an extent of Ac.0.21 guntas and found 128 ganja plants grown among the cotton plants and they plucked the ganja plants and secured the samples of 100 grams in two packets. A panchanama was prepared for the proceedings and the signatures of panch witnesses were obtained by the M.R.O. Jammikunta. The signatures of the witnesses were also obtained on the chits pasted on the samples and later he registered a case in PR No. 467/2001-02 and issued crime and occurrence report. He also deposited the samples in the court on 5.4.2002 and handed over the CD file to his successor for further investigation. In the cross-examination he stated that he did not enter about the information in the C.D. and he informed to the superior officers orally. The superior officers also participated in the proceedings. He did not obtain any certificate that the land is possessed by the accused at the time of inspection. They orally enquired the adjoining land owners about the possession of the land. Therefore, the Investigating Officer has stated that he has orally informed to his superior officers and he did not made any General Diary entry about the information received by him. According to him, the superior officer also participated in the proceedings and none of the superior officer affixed his signature in token of his participation in the proceedings and he registered a case in P.R. No. 467 of 2001-02 which is marked as Ex.P6, which shows that the copy of the same was sent to the Superintendent of Proh & Excise and S.D.P.O. Karimnagar. Therefore, immediately after the registration of the crime, he has informed the same to the higher officials but not immediately after receipt of the information. Therefore, it cannot be said that the Investigating officer has totally violated the provisions of Sec. 42 (1) & (2) of the Act as the information was furnished to his superior officers on registering the crime. The said aspect was also dealt with by the learned sessions Judge and by relying on the decision of the apex Court in Mohd. Yakub Vs. State of A.P.[3] held that the provisions of Section 57 of the Act are only directory and further observed that the provisions however, cannot be ignored as they would have bearing on the appreciation of the evidence and hence the evidence on record shows that in spite of the non-compliance of the mandatory provisions of Sec. 57 of the Act no prejudice is caused to the accused. 9. Therefore, it cannot be said that the Investigating Officer has failed to comply totally with the provisions of Section 42(1)& (2) and 57 of the Act. Therefore, the contention of the appellant counsel with regard to this aspect cannot be accepted. 10. With regard to the merits of the case, P.W.1- the Revenue Divisional Officer, who acted as a panch witness at the instance of the P.W.5 –Investigating Officer, categorically stated that on 20.11.2001 he was called by the excise police Jammikunta to Mallannapalli village and from there he along with the V.A.O. and P.Ws.2 and 3 – panch witnesses went to the field in Sy.No. 404/F and inspected the land belonging to the accused in an extent of Ac.0.21 guntas and found 128 ganja plants grown among cotton crop. The excise officials plucked the plants and secured samples of 100 gms in two covers. He identified M.O. as sample and Ex.P2 is the Pahani for the year 2001-02 issued by his office. P.Ws.2 to 4 panch witnesses turned hostile to the prosecution case but from the evidence of P.Ws.1 and 5 and 6, it is established that the excise officials inspected the land belonging to the accused in Sy.No.404/F on 20.11.2001 and found 128 ganja plants grown along with cotton plants and plucked the plants and seized the sample in two covers. 11. P.w.6 who is the Inspector of Police, has categorically stated that he collected Ex.P2-pahanies from the M.R.O.Jammikunta and also obtained the Chemical Examiner’s reports Ex.P7 and therefore, it shows that the said land belongs to the accused. Therefore, from the evidence of P.W.6 it is established that the accused is cultivating ganja plants in his land along with cotton plants. Hence the lower court has rightly found that the accused has committed an offence punishable u/Sec.8(b) r/w.Sec.20(a)(i) of the Act and the said finding does not warrant any interference by this court. Hence the conviction and sentence imposed on the accused by the lower court is hereby confirmed. 12. In the result, the criminal appeal is dismissed confirming the conviction and sentenced passed on 20-09-2004 in SC No.29 of 2003 by the I Additional Sessions Judge, Karimnagar. _________________ P.DURGA PRASAD, J Dt. 11-02-2011. Mjl/* [1] 2005(3) ALT(Crl.) 176(A.P.) [2] (2009) 8 Supreme Court Cases 539 [3] 2002(3) Crimes 57