THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No. 1043 of 2004 26th July, 2011 Between: Bandlamudy Rajaiah and 8 others … Appellants / A1 to A9 And The State of A.P., represented by its Public prosecutor … Respondent THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No. 1043 of 2004 JUDGMENT: This appeal is directed against the conviction and sentence passed by the Special Sessions Judge for N.D.P.S. Act, Prakasam District, at Ongole in Sessions Case No.346 of 1999 on 07.06.2004. The appellants herein are A1 to A9 and they were prosecuted for offences under Section 8(c) read with Section 20(b)(i) of N.D.P.S. Act for illegal possession of ganja. According to the prosecution, on 25.03.1999, at about 3.00 P.M., PW4 along with his staff was patrolling to detect the prohibition and excise offences, and reached the scene of offence and found the accused persons on the road margin keeping some gunny bags with them. PW4 got down from the jeep along with his staff and surrounded the accused. On questioning, the accused revealed that their bags contained ganja. PW4 deputed PW2 to Y.Cherlopalli village for securing mediators. And he returned along with PW1 U.Viswanatha Rao, and LW2 Dhanekula Venkataiah Talari of Y.Cherlopalli village. Then PW4 informed the accused that they have right to be searched in the presence of a Gazetted Officer for which they replied as not necessary. PW1 counted all the bags as 18 and they all were tied with country twine. On opening the said gunny bags, it was found that 17 gunny bags contained ganja with leaves, seeds, fruity tops, flowering tops and the 18th bag contained ganja seeds. On questioning the accused, they confessed stating that the said ganja belongs to them and the same was brought from Chilakacherla village and they were waiting there to go to Atmakuru of Kurnool district for selling the ganja; and PW4 verified all the bags and found 5 bags containing about 10 Kg of ganja each, two bags contained 20 Kg of ganja and seven bags contained 15 Kg of ganja each and three bags contained 25 Kg of ganja each, total 17 bags contained 270 Kg of ganja and 18th bag contained 35 kg of ganja seeds. PW4 took two samples from each bag for the purpose of chemical analysis in the presence of mediators and drafted the mediator report in the presence of PW1 and another, and registered a case in P.R.No.75/98-99 under Section 8(c) read with 20(b)(i) of N.D.P.S. Act and after chemical analysis of the report opined that the said samples contained ganja and hence all the accused were prosecuted under Section 8(c) read with Section 20(b)(i) of N.D.P.S. Act. The learned Special Sessions Judge framed charge under Section 8(c) read with Section 20(b)(i) of N.D.P.S. Act against all the accused and all the accused pleaded not guilty for the said charge. The prosecution in order to establish the said charge examined PWs.1 to 4 and got marked Exs.P1 to P6 and MOs.1 and 2. No exhibits were marked against the accused. Taking into consideration the oral and documentary evidence, the learned Sessions Judge found all the accused guilty for the offence under Section 8(c) read with Section 20(b)(i) of N.D.P.S Act and convicted and sentenced them to undergo Rigorous Imprisonment for one year each and also to pay a fine of Rs.500/- each in default to undergo Simple Imprisonment for one month. Aggrieved by the said conviction and sentence, the present appeal is filed by the accused. The counsel appearing for the appellants has pleaded that the mediator PW1 has turned hostile to the prosecution and there is no independent witnesses for the seizure of ganja from the possession of the accused and the evidence of PWs.2 to 4 cannot be relied upon as they are official witnesses interested in the prosecution case. The counsel further pointed out that PW2 has stated that they have gone to the scene of offence only in one vehicle but he could not say the jeep number in which they proceeded to the scene of offence; whereas PW3 stated that they have proceeded in two vehicles. The learned Public Prosecutor on the other hand pleaded that the evidence of PWs.2 to 4 is sufficient to establish the commission of offence and the discrepancy in stating that they proceeded in one jeep or two jeeps is not material to establish the offence against the accused. According to the prosecution, on 25.03.1999, at about 3.00 P.M., when PW4 and his staff were proceeding on patrolling duty to detect prohibition and excise offences, they found all the accused on road margin with gunny bags and on enquiry the accused stated that the said gunny bags contained ganja and after giving opportunity whether they would like to be searched in the presence of a Gazetted Officer, they replied as not necessary. PW1 counted all the bags as 18 and they conducted search in the presence of mediators and seized the ganja. Admittedly, PW1 who is the V.A.O. has turned hostile to the prosecution and he specifically stated that his signature was obtained on the mediator report in his office. The other witness PW2 who worked as S.I. of Police, Prohibition & Excise at Markapur has stated that on 25.03.1999, himself and C.I. of Excise as per instructions of S.D.P.O, Prohibition and Excise, Markapur along with two other S.Is. and two head constables and staff proceeded to cross road Y.Cherlopalli for detection of offences under Excise Act. And when they reached the scene of offence, they noticed nine persons sitting on gunny bags near the road margin and they surrounded the nine persons and C.I. asked them about the contents of the bags, to which the accused disclosed that the bags contained ganja and the C.I. directed him and one head constable Eswaraiah to pick up mediators from Y.Cherlopalli and that accordingly himself and Eswaraiah went to Y.Cherlopalli and picked up Talayari and took him to cross roads and the CI searched the bags in the presence of said mediators and found the said bags contained ganja weighing about 270 Kg and 35 Kg of ganja seeds. PW3 who worked as Head Constable at the time of incident has also supported the version of PW2 with regard to the patrolling duty to detect the offences under N.D.P.S. Act on 25.03.1999 and also about finding the nine persons sitting on gunny bags on the road margin at about 3.00 P.M. on that day and also the seizure of the said material from the possession of the accused. PW4 is the C.I. of Prohibition and Excise and he also supported the version of PW2 with regard to his proceeding along with his staff and PWs.2 and 3 on the instructions of S.D.P.O., Excise Officer, Markapur to detect the offences under Prohibition and Excise Act and about their finding nine persons sitting on gunny bags and on questioning them, they stated that the bags contained ganja and the said bags were seized in the presence of mediators and after seizure, collected one sample of ganja from 17 bags and one sample of ganja seeds from 18th bag and sent them for chemical analysis and received the chemical analysis report that the said samples contained ganja. PW1 turned hostile to the prosecution and PWs.2 to 4 have supported the case of the prosecution with regard to proceeding to the scene of offence and seizure of the 18 gunny bags from the possession of the accused and the said bags contained ganja. The learned Special Judge has also found that the evidence of PWs.2 to 4 is consistent with regard to the seizure of gunny bags containing ganja from the possession of the accused and simply because there is a contradiction with regard to their going in one vehicle or two vehicles to the spot is not material for the seizure of ganja from the possession of the accused. The learned Special Judge has specifically observed that PW1 retired from services and has turned hostile to the prosecution, however PW1 admitted his signature on Ex.P1 mediators report, and the evidence of PWs.2 to 4 is sufficient to establish that the offence under Section 8(c) under Section 20(b)(i) of the N.D.P.S.Act. Thus learned Special Sessions Judge has rightly found all the accused guilty of the offence under Section 8(c) under Section 20(b)(i) of the N.D.P.S.Act, and the said finding does not warrant any interference by this Court. With regard to the quantum of the sentence, the learned Special Judge convicted and sentenced them to undergo Rigorous Imprisonment for one year each and also to pay a fine of Rs.500/- each in default to undergo Simple Imprisonment for one month, which is sufficient punishment for the offence against all the accused and the said punishment does not warrant any interference by this Court. In the result, the appeal is dismissed and the conviction and sentence passed by the learned Special Judge in Sessions Case No.346 of 1999 on 07.06.2004 is hereby confirmed. ______________________________ JUSTICE P. DURGA PRASAD 26th July, 2011 KSM