THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.24 of 2006 BETWEEEN: Gaddam Vijeshwar Rao … Appellant AND The State of A.P. … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.24 of 2006 JUDGMENT: The appellant/A2 was convicted by the lower Court under Section 20(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.2,000/-. Questioning the same, A2 filed this appeal. It is alleged that on 03.07.2000, when PW4-Sub Inspector of Police, Chinnakodur Police Station was making route checking of vehicles on Rajeev Gandhi Rahadhari within his jurisdiction, A1 and A2 were going towards Hyderabad on motor cycle bearing No. AEH 5495 near Ananthasagar limits and that a bag was found on the motor cycle containing 7 Kgs. of dry ganja and that both the accused were arrested and ganja was seized in the presence of mediators PWs 1 and 2 under the cover of Exs.P1 and P2- Panchanamas. Plea of the accused was one of total denial and not guilty. During trial, A1 absconded and the case against him was separated by the lower Court. After trial, the lower Court found A2 guilty of the above charge. 2. It is contended by the appellant’s counsel that the prosecution evidence is discrepant and that there are contradictions in the evidence of PWs 1 and 2 and that ganja was not weighed in order to find out the same to be 7 Kgs. and that the prosecution could not prove its case beyond reasonable doubt. 3. PW1 is working as Clerk in Petrol pump located on Rajeev Gandhi Rahadhari at Ananthasagar. His Petrol pump is at a distance of 100 yards from the place where the Police stopped motorcycle of the accused and seized MO.1 ganja from the accused. PW2 is running hotel by the side of the said scene of offence. Therefore, PWs 1 and 2 are appropriate persons to function as mediators for seizure in this case. Their evidence discloses that MO.1 packet of ganja was found in a bag and it was recovered from the motorcycle on which the accused were going. The mediators were not with the Police by the time the Police stopped motorcycle of the accused. They were called to the scene after MO.1 was found with the accused on motorcycle and at the time of seizure of the same from the accused. It is their evidence that ganja was not weighed in their presence. PW4 also says that seized ganja was not weighed there. The ganja was found to be of 7Kgs. from the statements of A1 and A2 contained in Exs.P1 and P2- Panchanamas relating to A1 and A2 respectively. PW3 is the then Head Constable working in the same Police Station along with PW4. He accompanied PW4 to the scene of offence for vehicle checking in a routine fashion. It is evidence of PWs 3 and 4 that bag containing MO.1 ganja was in between A1 and A2 who were riding on motorcycle. It is contended by the appellant’s counsel that A2 was only a pillion rider and that he has nothing to do with MO.1 ganja found in the motorcycle. If A2 is a pillion rider, then MO.1 ganja bag was lying in front of him and behind A1. Therefore, it cannot be said that A2 was not in possession of the said ganja. A2 was holding ganja bag which was kept in front of him and in between A1 and A2. Non-weighing of ganja in this case is in no way detrimental to the prosecution case, since the quantity of ganja seized in this case is not a commercial quantity of ganja. Weight of ganja was determined by PW4 on the basis of statements given by both the accused and as per his estimation. 4. After coming to the Police Station, PW4 registered Exs.P1 and P2 as case in Crime No.37 of 2000 and issued Ex.P3- First Information Report. The Sub Divisional Police Officer sent MO.2 sample packet prepared by PW4 at the scene by taking a portion of MO.1 in the presence of mediators to Forensic Science Laboratory (FSL), Hyderabad. Ex.P4 is FSL report to the effect that on physical examination and chemical analysis, the sample is found to be ganja, which is a Narcotic substance. 5. Since PW4 went to the scene of offence on casual and routine patrolling and seized MO.1 ganja from the accused in public road, it is not necessary for PW4 to follow the requirements of Section 42(2) of the Act in this case. Since it is a case of bag search and not personal search, Section 50 of the Act has no application herein. But, PW4 deposed that he questioned the accused as to whether they require presence of a Gazetted Officer or Magistrate for search and seizure, the accused expressed that such procedure is not necessary. Section 57 of the Act is not a mandatory provision. In any event, after registration of FIR, PW4 sent copies thereof to all the higher officers, including Superintendent of Police, Sangareddy, Sub- Divisional Police Officer, Siddipet and Inspector of Police, Siddipet. It is a sufficient compliance of Section 57 of the Act since Ex.P3-FIR contains details of arrest and seizure of ganja. On independent scrutiny of the entire evidence on record, I am of the opinion that the lower Court rightly found A2 guilty of the offence and I do not find any valid or legal reasons to come to a different conclusion from that of the lower Court. The sentence of imprisonment imposed by the lower Court is also appropriate and reasonable. 6. Hence, the Criminal Appeal is dismissed. _____________________________ JUSTICE SAMUDRALA GOVINDARAJULU Dt:01.11.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.24 of 2006 Dt:01.11.2011 ysk