* THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU + CRIMINAL APPEAL No.2346 of 2004 % Dated 12-12-2011 # Tammina Durga, W/o Venkateswara Rao (late), Aged 28 years, R/o Fish Market, Kothapeta, Vijayawada …. Petitioner. Vs. $ The State Rep. by Public Prosecutor, High Court of A.P. Hyderabad. …. Respondent. ! Counsel for the Petitioner: Sri K. Suresh Reddy ^ Counsel for the Respondent: The Public Prosecutor. <GIST: > HEAD NOTE: ? Cases referred HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2346 of 2004 JUDGMENT: The appellant/accused was convicted by the lower Court under Section 8(c )/20 (b)(ii)(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) and was sentenced to rigorous imprisonment of one year and fine of Rs.1,000/-. Questioning the same, the accused filed this appeal. It is alleged that on 25.11.2001, 1 ½ kgs of ganja was seized from possession of the accused near Nehru Statue, Srinivasa Mahal, Kothapeta, Vijayawada and that the accused was having the same without any licence or permit. Plea of the accused is one of total denial and not guilty. After trial, the lower Court found her guilty of the above charge. 2. It is contended by the appellant’s counsel that non- examination of Inspector of Excise who is a gazetted Officer is fatal to the prosecution inasmuch as it amounts to violation of Section 50 of the Act. It is further contended that PW.1 who is the lone independent mediator, examined by the prosecution, turned hostile to the prosecution and did not support their case. 3. PWs.2 and 3 worked as Sub-Inspectors of Prohibition and Excise Department at Vijayawada. They were in the raid party at the time of arrest of the accused and alleged seizure of the contraband from her possession. The raid party consisted of Inspector of Prohibition and Excise (Enforcement), Vijayawada by name N.Kishore. The said Inspector was a gazetted Officer. At the time of arrest and seizure, Ex.P.2 mediators report was drafted. In that mediators report, it is mentioned and PWs.2 and 3 also have deposed before the trial Court to the effect that the raid party appraised the accused of her right to be searched in the presence of Magistrate or gazetted Officer and about the Inspector of Excise by name N.Krishore being a gazetted himself. It is further stated that the accused declined the offer for being taken to a Magistrate or gazetted Officer. Since there was a gazetted Officer in the raid party itself, there is sufficient compliance of Section 50 of the Act in case it is applicable to the present case. I am of the opinion that Section 50 of the Act has no application to this case because it is not a case of personal search of the accused by the raid party. In this case there was no personal search of the accused and it was only a baggage search. According to the prosecution, the accused was having M.O.1 bag containing M.O.2 ganja. In any event, Section 50 of the Act contemplates search of person of the accused in the presence of Magistrate or gazetted Officer and does not further contemplate that the said Magistrate or gazetted Officer should be examined in Court during trial. Therefore, assuming for a moment for the sake of argument that Section 50 of the Act has application to this case, non-examination of N.Kishore, gazetted Inspector of Excise is not fatal to the prosecution. 4. It is evidence of PW.1 that he is a resident of Kasturibaipet, near Gandhi Statue of Vijayawada. It is his evidence that on 25.11.2001 the excise officials called him to the Excise Station, Vijayawada West and asked him to sign on one paper and that another person also signed along with him on that paper. He admits Ex.P.1 as his signature in Ex.P.2 mediators report. He says that he signed after the mediators report was drafted and the contents of the mediators report were read over to him by the excise officials and that thereafter only he signed. He says that the other mediator is not available in Vijayawada since two years. He further says that he never saw the accused. Having admitted his signature in Ex.P.2 mediators report, it is for him to explain the circumstances under which he signed in Ex.P.2 and what prompted him to sign therein. It is not as if PW.1 had any prior contacts with excise officials or as if he was involved in any excise offences previously, so that he can have either obligation or fear for excise officials. PW.1 is a Barber by profession. He had nothing to do with excise officials nor excise offences. Therefore PW.1 cannot be believed to say that he was called to the excise station and was asked to sign on Ex.P.2 mediators report. If it is evidence of the mediators which is going to decide fate of this case, then such a situation will lead to unscrupulous method of winning over the mediators. It cannot be allowed. It is for the mediator to explain properly and to the satisfaction of the Court what made him to sign on the mediators report previously when contents therein did not happen in his presence. In this case, PW.1 has failed to do so. There are absolutely no circumstances to disbelieve evidence of PWs.2 and 3 in this case. On the ground that they are excise officials, their evidence cannot be brushed aside on that ground alone. The evidence on record conclusively proved that the accused was arrested by the excise officials in an open place at Nehru Statue located near Srinivasa Mahal, Kothapeta, Vijayawada and that M.O.1 bag containing 1 ½ kgs of M.O.2 ganja was seized from her possession. 5. PW.4, the then Station House Officer, Vijayawada West Excise Station sent M.O.3 sample packet to the laboratory for analysis through Sub-Divisional Excise Officer, Vijayawada along with Ex.P.4 letter of advice. After analysis, Government Chemical Examiner for Prohibition and Excise, Kakinada sent Ex.P.5 report to the effect that the sample was ganja. In the light of the above evidence, the lower Court rightly rejected evidence of the accused herself as D.W.1 and her neighbour as D.W.2. It is their case that the accused was running a meals hotel in her house in the ground floor and was residing in the first floor of the same house along with her family members and she was taken by four mufti Police Constables from her house in Kothapet. There is no basis for the said evidence. 6. Since seized quantity of ganja was ‘small quantity’ of 1 ½ kg, the lower Court punished her accordingly. There are no circumstances or ground in this appeal to come to a different conclusion from that of the lower Court. It is contended by the appellant’s counsel that sentence of imprisonment is on higher side. 7. In the result, the appeal is dismissed, but altering the period of imprisonment from one year to 6 months. ____________________________ SAMUDRALA GOVINDARAJULU,J Dt. 12th December, 2011. L.R. Copy (B/o) PNV