THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.1226 OF 2004 ORDER: This appeal is directed against the conviction and sentence passed by the Metropolitan Sessions Judge, Vijayawada in S.C.No.298 of 2002 on 29.06.2004. The appellants herein were prosecuted for the offence under Section 8 (c) read with 20 (b) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the N.D.P.S.Act”) alleging that on 18.04.2000 the Prohibition and Excise Inspector on receipt of the credible information, he along with his staff and mediators proceeded to Jack and Gill school near Poornanandampeta and found both the accused with Mika hand bags and on noticing them, accused No.2 ran away leaving behind the hand bag. Accused No.1 was apprehended and on questioning, accused No.1 disclosed that the bags are containing Ganja. On verification of the bag with accused No.1, they found about 4 kgs of Ganja and he also disclosed that accused No.2 is his paternal aunt by name Karukula Durga. On verification of the bag left by her, they found 3 kgs of Ganja. The Inspector of Prohibition and Excise took samples in the presence of mediators and got drafted mediators report. Thereafter, he arrested accused No.1 and seized the property and registered the case in Crime No.8 of 2000-2001 of Prohibition and Excise Station, Vijayawada and sent the accused No.1 to judicial custody and accused No.2 obtained anticipatory bail, after completion of investigation he filed charge sheet against both the accused. The learned Sessions Judge has framed the charges under Section 8 (c) read with 20 (b) of the N.D.P.S. Act against both the accused. Both the accused pleaded not guilty for the said charges. In order to establish the said charges, the prosecution examined P.Ws.1 and 2 and got marked Exs.P.1 to P.4 and M.Os.1 to 4. No oral and documentary evidence was adduced on behalf of the accused. The learned Sessions Judge by taking into consideration of the said oral and documentary evidence found both the accused guilty for the offence under Section 8 (c) read with 20 (b) of the N.D.P.S.Act; convicted and sentenced to undergo Rigorous imprisonment for 3 years each and to pay fine of Rs.1,000/- each in default simple imprisonment for One month each. Aggrieved by the said conviction and sentence, the present appeal is filed by the accused therein. Now, the point that arises for consideration is: Whether the prosecution could able to establish the offences under Section 8 (c) read with 20 (b) of the N.D.P.S. Act against the accused beyond reasonable doubt? P O I N T: The appellants’ counsel has pleaded that the mediator, P.W.1 has not stated about the facts mentioned in Ex.P.1. He categorically admitted that he do not know the contents of Ex.P.1 and he is a stock witness of the excise officials as admitted by him in the cross- examination, as such his evidence cannot be relied upon. Apart from the evidence of P.W.1, the other evidence available on record is the evidence of P.W.2, who is the Prohibition and Excise Inspector, who conducted the raid. He further pleaded that the prosecution has failed to establish the charge under Section 8(c) read with 20 (b) of NDPS Act as there is no independent witness to speak about the seizure of Ganja from the possession of accused No.1. He further pleaded that there is no material on record to show that accused No.2 was in possession of the mika hand bag containing Ganja as alleged in the charge sheet and she was not present at the time of seizure of Ganja and simply because she obtained anticipatory bail, she cannot be implicated in this case. The Additional Public Prosecutor on the other hand has pleaded that even though the evidence of P.W.1 cannot be relied upon, the evidence of P.W.2 is sufficient to establish the offence under Section 8(c) read with 20 (b) of NDPS Act and identity of accused No.2 was established from the admissions made by accused No.1 as mentioned in Ex.P.1. As such the lower Court has rightly convicted both the accused and the said conviction does not warrant any interference by this Court. According to the prosecution, P.W.2 on the information received by him proceeded to Jack and Gill school near Poornanandampeta on 18.04.2000 and found two persons carrying two mika hand bages and on seeing them, the female person escaped and he detained the male person. On questioned him, he stated that the said bag is containing Ganja and the person, who escaped is his paternal aunt. P.W.2 has seized M.Os.1 and 2 in the presence of P.W.1 under Ex.P.1. P.W.1 mediator has stated that he has proceeded along with P.W.2 to Poornanandampeta and noticed one female person and male person with head loads and on seeing them, the female person ran away by throwing the head load of her and male person was apprehended by the Excise officials and on opening of the said bag, it contained Ganja. According to him, police seized the samples and a mediators report was drafted, wherein he signed along with other mediators and he identified M.Os.1 and 2. But in the cross- examination, he has stated that except putting his signature on Ex.P.1 he does not know the contents of the said mediators report. In the further cross-examination he admitted that once in a month on average he used to visit the excise police station regarding his toddy business and except apprehending the male person on absconding of the female person, on suspicion of something they were carrying, police did not ascertain anything from the neighbours of the area and in his presence the contra-band was not weighed on that day. Therefore, from the admissions of P.W.1, it is clear that he is having toddy business and used to visit the excise police station once in a month. As such he is under the influence of the excise officials and he is not an independent witness for the seizure of the material from the possession of the accused. Moreover, as admitted by P.Ws.1 and 2 that a female person was escaped on seeing the excise officials and except the mediators report Ex.P.1, there is no other evidence to connect accused No.2 with the Ganja seized. According to the prosecution, one male person and female person carrying mika hand bags, whereas P.W.1 has stated that they are carrying head loads and he did not speak anything about the mika bags and he has not identified accused No.2 as the person, who has thrown the head load at the spot and left the place. Therefore, the prosecution has failed to establish the identity of accused No.2 and also recovery of Ganja from her possession. With regard to seizure of Ganja from the possession of accused No.1, except the evidence of P.W.2 there is no other independent witness to speak about the same. According to P.W.2, Ex.P.1 was drafted by S.I Rambabu, but the said S.I was not examined before the Court to establish the contents of Ex.P.1. Therefore, the prosecution has also failed to establish the seizure of Ganja from the possession of accused No.1 by any reliable evidence as P.W.2 is interested witness to prosecute the accused for the alleged offence. Since the prosecution failed to establish the recovery of M.Os.1 and 2 from the possession of accused Nos.1 and 2, the offence under Section 8 (c) read with 20 (b) of N.D.P.S.Act was not established. Thus, the finding recorded by the lower Court with regard to recovery of M.Os.1 and 2 from the possession of accused and also with regard to identification of accused No.2 from the evidence of P.Ws.1 and 2, is liable to be set aside as it is not supported by any reliable evidence. Therefore, the prosecution could not establish the charge under Section 8 (c) read with 20 (b) of N.D.P.S.Act against the accused. In the result, the appeal is allowed. The conviction and sentence passed by the learned Metropolitan Sessions Judge, Vijayawada in S.C.No.298 of 2002 on 29.06.2004 is hereby set aside and the accused are acquitted for the offence under Section 8 (c) read with 20 (b) of N.D.P.S.Act. _______________________ P.DURGA PRASAD, J 29th October, 2011 Ksp