THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No. 2481 of 2004 Date: 15th March, 2011 Between: Golla Prabhakarararao and 3 others … Appellants A n d The State rep. by its Public Prosecutor … Respondent THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No. 2481 of 2004 JUDGMENT: This appeal arising out of the convictions and sentences passed by the I Additional Sessions Judge, Guntur in Sessions Case No.42 of 2001 on 17-11-2004. The appellants herein were prosecuted for the offence under Section 8(c) read with 20(b)(i) of N.D.P.S. Act alleging that on 21-03-2001 at about 08:30 p.m., while the Inspector of police along with P.W.2-Sub-Inspector of Police, Arundelpet were moving in Guntur town and when they reached near the over-bridge at 1st line, Brodipet, Guntur, found A1 to A4 under street light and on seeing them, they tried to run away and they were surrounded and caught by the police and called the mediators P.W.1–Kasukurthi Hanumantharao. The Inspector of Police enquired the accused and they confessed that A2 brought ¼ kg of ganja from an unknown person at Tenali Railway Station and they shared it equally and selling the same at higher price, and they sold some ganja and the balance was having with each of them. Then the Inspector of Police checked them and found 50gm of ganja and Rs.40/- from the possession of A1, 50 gm of ganja and Rs.30/- from A2, 50 gm of ganja and Rs.20/- each from A3 and A4 and he seized ganja in the presence of mediators and thereafter P.W.2 has registered the case in Crime No.94 of 2001 under Section 8(c) read with 20(b)(i) of N.D.P.S Act and samples of ganja were sent to Excise Laboratory, Guntur and received the expert report that the samples are ganja and hence charges were framed against A1 to A4 and were prosecuted under Section 8(c) read with 20(b)(i) of N.D.P.S Act. 2. The prosecution examined P.Ws.1 and 2 and got Exs.P-1 to P-6 and M.Os.1 to 12 marked. The learned sessions Judge by taking into consideration oral and documentary evidence, found the accused guilty of the charges under Section 8(c) read with 20(b)(i) of N.D.P.S Act and convicted and sentenced to undergo rigorous imprisonment for six months each and also to pay fine of Rs.5000/- in default to undergo simple imprisonment for six months each. Against the said conviction, the present appeal is filed. 3. When the matter is taken up for hearing, there is no representation from the appellants and hence, the matter is being disposed of basing on the material on record. 4. Now the point for consideration is whether the prosecution is able to establish the charge under Section 8(c) read with 20(b)(i) of N.D.P.S Act beyond reasonable doubt. 5. As per the grounds of appeal, the appellants have pleaded that mandatory provisions of Sections 42, 50 and 57 of the N.D.P.S. Act have not been complied with, and P.W.1 is a stock witness and P.W.2 is the Sub-Inspector of Police, and no independent witness was examined by the prosecution to establish the offence under N.D.P.S Act and, the lower Court ought to have disbelieved the evidence of P.W.2 and acquitted the accused. 6. On behalf of the respondent, Public Prosecutor pleaded that even though P.W.1 is stock witness as evidenced by him, the evidence of P.W.2 is sufficient to establish the case of the prosecution and the Inspector of Police who is cited as L.W.8, who conducted the search and seizure of the Ganja from the possession of the accused is no more, and as P.W.2 assisted him in search and seizure of Ganja from the accused persons, the evidence can be relied upon. 7. The case of the prosecution is that on 21-03-2001, P.W.2 along with Inspector of Police was moving in Guntur town when they reached near overbridge at 1st line, Brodipet, Guntur, the accused were found under the street light and on seeing the police, they tried to run away and they were surrounded and caught by the police and called the mediators P.W.1 and another and interrogated the accused and the accused confessed of purchasing Ganja and selling the same and they were in possession of packets of Ganja. P.W.2-Investigating officer has stated that he was assisting the Inspector of Police M. Satyanarayana and on reaching the overbridge at 1st line, Brodipet, Guntur, found the accused under the electrical pole and they caught hold of him with the assistance of his staff and the Inspector stopped two persons who are going on the route and requested them to act as mediators and they are Daliparthy Satyanarayana and Kasukurthi Hanumantharao. The Inspector of Police asked names of the accused in the presence of above said persons. They have stated that they are in possession of Ganja and they had purchased ¼ kg of Ganja at railway station and sold the same and the balance of Ganja is in their possession. According to P.W.2, the Inspector of Police immediately informed the Assistant Superintendent of Police Smt. Bhavna Saxena and also asked the accused whether they were to be searched in the presence of Magistrate or any other Gazetted Officer for which the accused has stated that they can be searched by the Inspector of Police, upon which the Inspector of Police searched A1 to A4 and seized Ganja packets and the sale proceeds and pasted slips on the packets containing ganja and the signatures of A1 to A4 were obtained. On the directions of Inspector of Police, basing on Ex.P-1- Mediator’s Report, Crime was registered and Ex.P-2-FIR was issued. M.O.1 is the sample of ganja taken from the possession of A1, M.O.2 is the sample of ganja taken from the possession of A2, M.O.3 is the sample of ganja taken from the possession of A3, M.O.4. is the sample of ganja taken from the possession of A4, M.O.5 is the remaining ganja seized from A1, M.O.6 is the remaining ganja seized from A2, M.O.7 is the remaining ganja seized from A3, M.O.8 is the remaining ganja seized from A4, M.O.9-Rs.40/- seized from A1, M.O.10-Rs.30/- seized from A2, M.O.11-Rs.20/- seized from A3, M.O.12-Rs.20/- seized from A4. 8. P.W.2 further stated that after returning to the police station, he registered the case in Crime No.94 of 2001 and issued FIR-Ex.P-2, and the Inspector of Police informed about the arrest of A1 to A4 and seizure of the ganja and cash from their possession to the Assistant Superintendent of Police Smt. Bhavna Saxena and P.W.2 was present along with the Inspector at that time. The Inspector of Police, M. Satyanarayana died about a year back. Therefore, in view of the death of M.Satyanarayana, Inspector of Police, the prosecution could not examine him. As P.W.2 assisted him and was present with him during the search and seizure of ganja from the accused, his evidence can be relied upon. P.W.2 also stated that immediately after knowing that A1 to A4 were in possession of ganja, Inspector of Police informed Assistant Superintendent of Police about the search and seizure of ganja. The Inspector of Police also informed the accused about their right to be searched in the presence of a Gazetted Officer or Magistrate and they replied that search by the Inspector is sufficient and after search and seizure of ganja from the possession, the inspector informed Assistant Superintendent of Police about the same. In the cross examination, the said evidence of P.W.2 could not be demolished by the defence counsel. Even though P.W.1 who is the mediator has supported the version of the prosecution in his chief examination; but in the cross examination he has stated that he acted as mediator in about four or five cases along with P.W.2. Therefore, in view of the admission made by P.W.1, he can be treated as stock witness of the police and as such his evidence cannot be relied upon. Even without relying upon the evidence of P.W.1, the entire story of the prosecution was established by the evidence of P.W.2 and the learned Sessions Judge has rightly come to the conclusion about compliance of Sections 42, 50 and 57 by the investigating officer. And the learned Sessions Judge has rightly observed that no specific procedure is prescribed for compliance of Sections 42, 50 and 57 as per the observation of the Apex Court in the case between STATE OF PUNJAB v. BALDEV SINGH[1] and in the case between KRISHNA KANWAR ALIAS THAKURAEEN v. STATE OF RAJASTHAN[2]. In view of the above said citations, in the present case, the Inspector of Police has complied with Sections 42, 50 and 57 of the above Act and the procedure followed by him is fair and just procedure for the compliance of the said provisions. Therefore, the prosecution has complied with the provisions of Sections 42, 50 and 57 of the N.D.P.S Act. Thus the prosecution established the case beyond reasonable doubt. With regard to the quantum of sentence, the learned Sessions Judge has convicted all the accused and sentenced them to undergo rigorous imprisonment for six months each and also to pay fine of Rs.5,000/- in default to undergo simple imprisonment for six months each. 9. In view of the recovery of a small quantity of N.D.P.S substance from the possession of the accused, imposing fine of Rs.5,000/- in default to undergo six months simple imprisonment is highly disproportionate and the same is liable to be modified. In the result, the appeal is dismissed confirming the conviction of the accused under Section 8(c) read with 20(b)(i) of N.D.P.S Act; but modified the sentence to rigorous imprisonment for six months and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for one month. ______________________ JUSTICE P. DURGA PRASAD 15th March, 2011 KSM [1] 1999 (6) SCC 172 [2] 2004 (2) SCC 608