THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No. 2612 of 2004 JUDGMENT: The appellants 1 and 2/A1 and A2 and two others were convicted by the lower Court under Section 8(c)/20(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act), and were sentenced to rigorous imprisonment of one year. Further, A1 and A2 were also imposed fine of Rs.10,000/- each. Questioning the said conviction and sentences, A1 and A2 filed this appeal. Though there were six accused persons in this crime, only four of them namely, A1, A2, A4 and A5 faced trial before the lower Court. It is alleged that on 12.12.2003 evening when Sub-Inspector of Police, Chityal Police Station was conducting route check at Krosurpally Cross Roads along with his staff, he stopped a jeep bearing No.AP 15 V 3792 and made check and that A1 to A6 were in that jeep and that they were found to be in possession of three gunny bags and three wooden handle bags respectively containing dry ganja. Total ganja in those six bags was found to be 42.600 Kgs. Plea of the accused was one of total denial and not guilty. After trial, the lower Court found A1, A2, A4 and A5 guilty of the charge. Ex.P.1 is Panchanama prepared at the scene and it contains statements said to have been given by the accused and also proceedings relating to seizure of six bags of ganja from possession of A1 to A6 respectively. PW.3 is the detecting Police Officer. PW.2 is one of the mediators in Ex.P.1. He was Panchayat Secretary of the village panchayat at that time. PW.1 was Mandal Revenue Officer, Chityal Mandal. PW.3 requisitioned services of PW.1 in accordance with Section 50 of the Act. Apart from PW.2, another panchayatdar by name Ankush was also deployed in this case. At the time of seizure under Ex.P.1, samples of ganja were taken from each of the bags and they were sealed. After seizure, PW.3 sent Ex.P.1 along with his report-Ex.P.3 to the Police Station. PW.4 registered the same as case and issued Ex.P.5-FIR. Ex.P.4 is the requisition sent by PW.3 to PW.1. Subsequent to registration of case, the Inspector of Police/PW.5 took up investigation of this case and sent the samples to laboratory for analysis. Ex.P.8 is analysis report to the effect that all the samples contained ganja. It is contended by the appellants’ counsel that there are contradictions among the evidence of PWs.1 to 3 with regard to time, distance, colour of the vehicle etc., and that the said contradictions falsify their evidence. It is further contended that the case was falsely booked for statistical purposes. This is not a case booked by the Excise officials. This case was booked by the police officials. In case any case is required for statistical purposes, single case would not have been booked against six persons. Total quantity of ganja seized in this case is 42.600 Kgs, which is substantial property. I do not think that this case was booked for statistical purposes. This is not a case relating to personal search which requires compliance of Section 50 of the Act. This is a case of search of baggage in which ganja was located. Bags and the persons were in a jeep. This is a vehicular search also. Therefore, in spite of it, PW.3 intended to comply with Section 50 of the Act, and therefore requisitioned services of PW.1 who was the Mandal Revenue Officer. Even though it is a case of vehicular search, Section 42(2) of the Act may not be applicable to this case because the search was not on information, but it was a routine or casual search. Therefore, there is no necessity of complying with the requirements under Section 42(2) of the Act in this case. According to PW.3, after seizure of contraband by A1 to A6 along with the jeep, he sent report to the Sub-Divisional Police Officer, Parkal Sub-Division, through PC 1566. It is in accordance with Section 57 of the Act. In any event, compliance of Section 57 of the Act is not mandatory. Apart from seizure of contraband in this case, Ex.P.1 contains statements given by the accused to PW.1 in the presence of mediators including PW.2. The said statements are not hit by Section 26 of the Indian Evidence Act, because Section 53(A) of the Act makes such statements relevant pieces of evidence in a case under the Act. PW.3 deposed that at 1630 hrs he found a jeep in sky blue colour coming from Anthuk Tanda side and he stopped the said vehicle and found A1 to A6 therein. According to the prosecution, A1 was driver of the jeep and A2 was owner of the jeep. PW.3 says that he sent the requisition to PW.1 and thereupon PW.1 reached the spot at 4.40 P.M. PW.1 deposed that he received the requisition from the police at 5.00 P.M. while he was in his office which is located at a distance of about 3 furlongs from the scene. According to PW.3, distance of Mandal Revenue Office from the scene is about 15 yards. PW.2 deposed that his office is located at a distance of ½ Km from the scene and that when he was at his office at about 4.30 P.M., the police constable came to him and asked him to act as panch witness for search and seizure of ganja and took him to the scene. In my opinion, the discrepancy with regard to the distance and timings are trivial in nature. It is not as if one gave the timing in the morning and another gave the timing in the evening or night. Difference of few minutes this way or that way, cannot tilt the balance in favour of the accused. It is pointed out that there is difference in colour of the jeep between evidence of PW.3 and Ex.P.10-property form. As per PW.3’s evidence, the vehicle is in sky blue colour, whereas in Ex.P.10, it was mentioned as ash colour. Both the colours are almost similar colours. At no point of time there is difference in giving registration number of the vehicle. At all points of time, the registration number of the vehicle is given as AP 15 V 3792. Therefore, there cannot be any doubt with regard to identity of the vehicle seized in this case. The accused further cannot take advantage of an entry in Ex.P.11-certificate of destruction about the date of destruction, because the contraband was sent physically to the court along with Ex.P.10 and it is only after receiving the contraband in court, the court passed order of destruction of the said property. Therefore, mentioning of date 24.01.2004 as date of production of ganja as well as date of destruction of ganja in Ex.P.11 is not material. It is further contended that there is discrepancy with regard to the time of arrival of PWs.1 and 2 at the scene and it is discrepant as to whether PW.1 arrived at the scene in the first instance or PW.2 arrived at the scene. A slight discrepancy in this regard cannot destroy the entire prosecution case. This is a discrepancy on immaterial aspect and does not go to root of the case. The evidence of PWs.1 to 3 undoubtedly reveal that three bags of ganja and three more bags of ganja with wooden handles were recovered from possession of the accused in pursuance of their statements recorded in Ex.P.1. It is further pointed out that at one place the bags were described as gunny bags whereas at another place the bags were described as urea bags. Description of the bags as gunny bags does not mean that those bags are made of jute. Gunny bags are different from hand bags. Gunny bags can be made of either jute or any other material and it can be used for any purpose like storing rice or pulses or urea or cement. On consideration of the entire material on record, the lower Court rightly came to the conclusion in favour of the prosecution. In the circumstances, the appeal is dismissed, but altering the sentence of imprisonment from one year to six months. ___________________________ SAMUDRALA GOVINDARAJULU, J 11th October, 2011 KSM