THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL No. 2269 of 2004 DATE: 15-03-2011 Between: Kunduru Balaiah and another .. Appellants And The State of A.P., Rep. by High Court, Hyderabad .. Respondent THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL No. 2269 of 2004 JUDGMENT: This is an appeal arising out of the conviction and sentence passed by the learned Metropolitan Sessions Judge, Vijayawada in Sessions Case No.51 of 2002 on 11.10.2004. The appellants herein are A1 and A2 in the above said case and they were prosecuted for the offence under Section 8(c) read with Section 20 (b) (ii) (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the N.D.P.S. Act”) alleging that on 18.11.2001 the Inspector of Railway Police P.W.6 received clandestine information about the possession of ganja by the accused on plat form No.2 of Rajahmundry Railway Station. Immediately P.W.6 along with P.W.5 and other staff having secured the presence of P.Ws.p 1 to 3, proceeded near foot bridge situated on plat form No.2 of Rajahmundry Railway Station at 14.00 hours and found A1 to A3, who were coming down foot over bridge with hand bags smelling ganja. P.W.6 questioned them and they gave their names and addresses and then P.W.6 gave search memo to the accused and searched the hand bags of A1 to A3. A1 was in possession of 5 Kgs. of ganja with seed in a gunny bag; A2 was in possession of a gunny hand bag containing 3 Kgs. of ganja with seed and A3 was in possession of a gunny hand bag containing 3 Kgs. of ganja with seed, totally 11 Kgs. valued at Rs.3,000/-. Upon which the accused disclosed that they have purchased the said ganja from one unknown sadhu at Anaparthi Railway Station in East Godavari District and wanted to sell the same to the public. In pursuance of the said confession, A1 to A3 were arrested and seized the said three bags from their possession under cover of panchanama in the presence of mediators and basing on the mediators report, registered the case in Crime No.95 of 2001 and sent the samples to Government Chemical Examiner of Prohibition and Excise, Regional Prohibition & Excise Laboratory, Kakinada and who opined that the samples are of ganja. Hence, the accused are prosecuted for the offence under Section 8(c) read with Section 20 (b) (1) of the NDPS Act. The learned Metropolitan Sessions Judge, Vijayawada has framed the charge under Section 8(c) read with Section 20 (b) of the NDPS 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 P.Ws.1 to 6 and got marked Exs.P-1 to P-9 and M.Os.1 to 9 and Ex.C- 1. The learned Metropolitan Sessions Judge, Vijayawada by taking into consideration of the said oral and documentary evidence, found all the accused guilty for the said charge and convicted and A1 is sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.200/- in default to undergo simple imprisonment for 15 days; A2 is sentenced to undergo rigorous imprisonment for a period of one and half years and to pay a fine of Rs.200/- in default to undergo simple imprisonment for 15 days and A3 is sentenced to undergo rigorous imprisonment for a period of one and half months and to pay a fine of Rs.200/- in default to undergo simple imprisonment for 15 days. Aggrieved by the said conviction and sentence, A1 and A2 therein have filed the present appeal. Now the point that arises for consideration is whether the prosecution could able to establish the offence under Section 8 (c) read with Section 20(b)(ii)(b) of the NDPS Act against the accused beyond reasonable doubt? The learned appellants’ counsel pleaded that the mediators P.Ws. 1 to 3 have turned hostile for the prosecution and P.W.4 is only the Chemical Examiner working in the Regional Prohibition and Excise Laboratory, Kakinada and the only evidence available on record is the evidence of P.Ws.4 and 6 and their evidence is not corroborated with each other and the Investigating Officer is not complied with the mandatory provisions of the Act, as such they are entitled to be acquitted for the above said charge. On the other hand, the learned Public Prosecutor has argued that the prosecution has established the offence against the accused from the evidence of P.Ws.4 and 6, even though P.Ws.1 to 3 have turned hostile by the prosecution. According to the prosecution on 18.11.2001 on reliable information P.W.6 along with other staff P.W.4 and another and mediators P.Ws.1 to 3, proceeded to the Rajahmundry Railway Station and found the accused near the foot over bridge with the hand bags emanating smell of ganja, on suspicion he searched the hand bags and found they are in possession of ganja. Accordingly, they were arrested and seized the ganja in the presence of mediators P.Ws.1 to 3 from the possession of the accused. According to the Investigating Officer P.W.6, on receipt of the information that some persons are moving on the plat form of Rajahmundry Railway Station with contraband goods, he proceeded to the Railway Station plat form along with P.Ws. 1 to 3 and noticed two male persons and one female, who are A1 to A3 and on seeing them the accused tried to skulk away with their baggage and he got apprehended them with his staff and questioned them about the contents of the baggage and they have disclosed that they are containing ganja, then he searched the said bags in the presence of mediators and found it to be ganja and seized the said bags M.Os.1 to 3 containing ganja and took samples from the said bags and M.Os.4 to 6 are the samples. P.Ws.1 to 3 are the mediators for the said search and all of them have turned hostile for prosecution and they have stated that their signatures have obtained in the Railway Police Station and they have not seen the A1 to A3 and nothing was seized from their possession. Thus, the only evidence is available on record to establish the charge is P.W.4 Head Constable and P.W.6 the Investigating Officer. P.W.4, the Head Constable, supported the version of P.W.6 with regard to the proceeding of plat form of Railway Station and finding the accused near the foot over bridge and their disclosure that they are selling ganja contained in the said bags by bringing from Anaparthi and according to him, Ex.P-2 mediators report was drafted in his presence. Therefore, the evidence of P.Ws. 4 and 6 is corroborating with each other. The learned appellants’ counsel has pleaded that the information received by the Investigating Officer was not reduced into writing and he has not informed the same to his superior officers as required under Section 42 of the NDPS Act. The learned Metropolitan Sessions Judge, Vijayawada has considered the applicability of cognizance of Section 42 of the NDPS Act and found the same is applicable i.e. to enter and search any building, place of conveyance of animal or other places but not for search of a person. Section 42 of the NDPS Act clearly shows that the Section is applicable only for the searches made in private places and not in public places and the learned Metropolitan Sessions Judge, Vijayawada has come to the conclusion that Section 42 is not applicable. Therefore, the contention of the appellants’ counsel that Section 42 of the NDPS Act has not complied, cannot be accepted and same is not applicable. The Appellants’ counsel further pleaded that the Investigating Officer has not complied with the provisions of Section 50 of the NDPS Act before making search of the hand bags of the accused informing the right of the accused in the presence of a Magistrate or Gazetted Officer. The learned Metropolitan Sessions Judge, Vijayawada has come to the conclusion that Section 50 of the NDPS Act is not also applicable to the present case as it is a search of the bags, which are in possession of the accused and not the accused persons. Since Section 50 of the NDPS Act only applicable to the search of a person and not the contraband in the bag of the accused. Therefore, Section 50 of the NDPS Act is not applicable. The learned Metropolitan Sessions Judge, Vijayawada has come to the conclusion that the evidence of P.W.6 is contrary to the evidence of P.W.4 with regard to the scribing of Ex.P-2 but he has explained that it is not a material contradiction to appreciate the evidence. According to P.W.4, Ex.P-2 was got prepared by P.W.6 by a person typist, whose name he cannot say as it was written by hand. Later on the accused along with the contraband, Ex.P-2 brought to the Railway Police Station and he does not know what happened thereafter. Therefore, according to P.W.4, Ex.P-2 was drafted by a typist but he could not able to disclose the name of the said person and according to P.W.6, the Investigating Officer, that Ex.P2 mediators report was drafted on his request by one of the mediators and thereafter the contents are read over to P.Ws. 1 to 3 and they signed on the same. Therefore, according to the Investigating Officer, Ex.P-2 was drafted by one of the mediators but Ex.P-2 does not disclose that it was drafted by any of the mediators and moreover, all the mediators are stated that they have signed in the Railway Police Station of Rajahmundry. Therefore, the prosecution fails to establish about the drafting of Ex.P-2 at the time of seizure. Since the entire case of the prosecution relied upon Ex.P-2 mediators report for the seizure of M.Os.1 to 3 from the possession of the accused and as the same has not proved beyond reasonable doubt, I hold that the accused are entitled for benefit of doubt, as such the prosecution failed to prove the charge under Section 8(c) read with Section 20 (b) (ii) (b) of the NDPS Act. In the result, the appeal is allowed and the conviction and sentence passed by the learned Metropolitan Sessions Judge, Vijayawada in Sessions Case No.51 of 2002 on 11.10.2004 is set aside. ___________________ P.DURGA PRASAD, J 15-03-2011 MR THE HON’BLE SRI JUSTICE P.DURGA PRASAD Crl.A.No. 2269 of 2004 DATE: 15-03-2011 MR