IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2369 of 2011 DATE: 09.08.2011 Between: Kundeti Durga Rao …… Petitioner And The State of A.P, rep. by its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad. …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2369 of 2004 JUDGMENT: The appellant/accused was convicted of the offence under Section 8(c)/20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) and was sentenced to rigorous imprisonment for four months and fine of Rs.1,000/- by the Metropolitan Sessions Judge-cum-Special Judge under the Act, Vijayawada by the impugned judgment in Sessions Case No.49 of 2003. Aggrieved by the same, the accused filed this appeal. 2) It is alleged that the accused was arrested while in possession of M.O-1 Polythene bag containing 6 ½ kgs of Ganja. Plea of the accused is one of total denial and not guilty. After trial, in which P.Ws 1 to 3 were examined and Exs.P-1 to P- 7 and M.Os 1 and 2 were marked, the lower Court found the accused guilty of the charge. 3) In this appeal, the appellant’s counsel contended that P.W-1 who is one of the mediators in Ex.P-1 to P-3 mediators’ report, is an interested witness in as much as he worked as Home Guard in police Department and worked as jeep driver of many police officers and that he is also a stock witness for the police as he figured as one of the mediators in 6 or 7 cases relating to Nunna Rural Police Station. P.W-1 admits the above facts relating to the said argument. Simply because P.W-1 happened to work as Home Guard for some time, during which period he drove jeeps of some police officers, it cannot be taken as a disqualification for P.W-1 to function as mediator in a criminal case booked by the police. P.W-1 deposed in cross- examination that Nunna Rural Police Station is ¼ Km, away to Santhi Nagar, where his house is situated and where the occurrence took place. Therefore, P.W-1 is a resident of the same locality in which detection of the offence took place. Apart from P.W-1, two more mediators were employed in this case for recording Exs.P-1 to P-3 Panchanamas. No such attributions were made to the other two mediators. Therefore, even though P.W-1 functioned as a mediators in 6 or 7 other cases, he being a resident of the locality where the offence was detected, he is a competent witness in the transaction. 4) Apart from evidence of P.W-1, there is evidence of P.W-2 who worked as Mandal Revenue Officer, Vijayawada Urban. Though it was not a case of personal search inviting compliance of Section 50 of the Act, P.W-3 the Sub-inspector of police was scrupulous in taking the accused to P.W-2. P.W-2 is a party to Ex.P-2 mediators’ report. It is contended by the appellant’s counsel that immediately after the accused was apprehended at the park, P.W-3 took M.O-1 polythene bag containing Ganja from the accused and therefore there was nothing else which happened before P.W-2. Though P.W-3 took the accused as well as M.O-1 into custody, M.O-1 bag of the accused was searched in the presence of P.W-2 and formal seizure of M.O-1 was effected in the presence of P.W-2. P.W-2 further deposed about P.W-3 collecting samples from out of the contents of M.O- 1 and sealing the said samples in accordance with Section 55 of the Act. It is further evidence of P.W-2 that the accused gave confessional statement in his presence to the effect that the contraband was purchased by him at Anaparthy village of East Godavari District and that when he was going to his house along with the same he was arrested by the police. It is contended by the appellant’s counsel that the said statement is inadmissible in evidence as it is a confession said to have been made in the presence of a police officer and is hit by Sections 25 and 26 of the Evidence Act. But Section 53-A of the Act which is a special rule of evidence prevails over Section 25 and 26 of the Evidence Act. Under Section 53-A the statement of the accused given to the authorised officer is a relevant piece of evidence in Court. The said statement contained in Ex.P-2 was also signed by the accused. 5) It is contended by the appellant’s counsel that there is non-compliance of Section 42(2) of the Act in as much as P.W-3 did not send the information received by him to his immediate superior officer. Section 42 of the Act reads as follows: “42.Power of entry, search, seizure and arrest without warrant or authorisation:- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a person, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and (d) detain and search, and. if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act : Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.” 6) The said provision contemplates sending of information reduced into writing by the police officer to his immediate superior officer within the specified time. In this case P.W-1 did not state that he reduced the information received by him into writing. Even in cross-examination, there is no indication from P.W-3 that the information furnished to him by the informer was reduced into writing. 7) The appellant’s counsel placed reliance on State of Karnataka V. Dondusa Namasa Baddi[1] and contended that it is the duty of the police officer as soon as he received information to reduce the same into writing and to comply with the requirement of Section 42(2) of the Act. The Supreme Court, after relying on earlier decision of the Supreme Court in Abdul Rashid Ibrahim Mansuri V. State of Gujarat[2] ultimately found on facts that the police officer in that case though had sufficient time, did not reduce the information in writing and that therefore, the police officer did not perform his duty under Section 42(1) of the Act resulting in non-compliance of Section 42(2) of the Act. 8) It has to be scrutinised whether in this case there was sufficient time for P.W-3 to reduce the information into writing in accordance with Section 42 of the Act. There is no evidence on record to show as to at what point of time P.W-3 received the information of this offence. P.W-1 deposed that at 10.30 A.M he was called to the police station and was asked to function as mediator in this case. As seen from Ex.P-1 mediators’ report, by 11.00 A.M the accused was apprehended at the park which is at some distance from the police station. Evidence of P.Ws 1 and 3 revealed that the informant was accompanying the raid party to the scene of offence and it was the informant who pointed out the accused as the person who was carrying Ganja with him. When the informant was accompanying the police officer, there was no need for the police officer to reduce the information into writing. Apart from that all the events occurred one after the other in quick succession without much time gap. In that view of the matter, I am of the opinion that failure to reduce information received by P.W-3 in writing will not amount to non-compliance of Section 42(1) of the Act in this case. 9) Even though there is no compliance of the requirement of Section 57 of the Act, it is obvious that the said provision is only directory and not mandatory. 10) Having regard to the evidence on record, the lower Court rightly came to the conclusion in favour of the prosecution and found the accused guilty of the charge. There are no grounds either in law or on facts to interfere with the said finding of guilt by the lower Court. 11) In the result, the appeal is dismissed. 12) Before parting with this case, the appellant’s counsel requested for a clarification in view of the discrepancy in the operative portion of the judgment and the calendar portion of the judgment. Even though in the operative portion of the judgment, sentence of imprisonment is noted as rigorous imprisonment for four months, in the calendar it was noted as rigorous imprisonment for four years. The operative portion of the judgment of the Court prevails over the calendar portion of the judgment prepared by staff of the lower Court. In this case, this Court confirmed that sentence of rigorous imprisonment for four months awarded by the lower Court in operative portion of its judgment. _______________________________ SAMUDRALA GOVINDARAJULU, J August 9, 2011 ksh [1] (2011)1 Supreme Court Cases (Cri) 576 =(2010)12 Supreme Court Cases 495 [2] (2000)2 Supreme Court Cases 513