THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.2087 of 2004 BETWEEEN: Gandam Mallaiah … Appellant AND State of A.P. through Prohibition & Excise Inspector … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2087 of 2004 JUDGMENT: The appellant/accused was convicted by the lower Court under Section 8(b)/20(a)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) and was sentenced to rigorous imprisonment of three years and fine of Rs.5,000/-. Questioning the same, the accused filed this appeal. 2. It is alleged that the accused raised 149 ganja plants in the land of Ac.2.00 guntas in Sy.No.339/A of Mallannapally Village and found growing of 149 ganja plants in the midst of cotton plants. Plea of the accused is one of total denial and not guilty. After trial, the lower Court found him guilty of the above charge. It is contended in the grounds of appeal that there is no evidence in support of the prosecution case about plantation of ganja plants in the field of the appellant, except evidence of official witnesses PWs 4 and 6. It is further raised in the grounds that there is non-compliance of Section 57 of the Act in this case. 3. PWs 1 and 2 are mediators for panchanama. Both of them turned hostile to the prosecution. PW3 is the then Village Administrative Officer of Rachapalli Village. He also turned hostile to the prosecution. PW4 is the then Excise Inspector, Jammikunta, who raided the land along with Mandal Revenue Officer/PW4 and PWs 1 to 3. PW5 is the successor in office of PW4 and he filed charge sheet in this case. PW2 is a Village Sunkari (Village Servant). PW1 admits his signature Ex.P1 in Ex.P4 panchanama. PW2 admits his signature Ex.P2 in Ex.P4 panchanama. PW3 also admits his signature Ex.P3 in Ex.P4 panchanama. Since PW3 happened to retire from service by the date of trial in the lower Court, he had chosen to turn hostile to the prosecution. Ex.P4 panchanama reads that PW3 accompanied PW6 to the land along with PW4 and identified the land. No doubt, the accused was not available at the land at the time of raid. PWs 1 to 3 did not give any reason as to why and what prompted them to sign in Ex.P4 panchanama. If the events mentioned therein did not happen in their presence, there was no necessity for them to sign on Ex.P4, particularly when PW2 was a Village Servant and PW3 was a responsible village officer. It is not their case that they have any obligation or fear for the Excise officials. It is not as if they figured as accused persons previously in any Excise offences, so that they can entertain fear for Excise officials in their mind. Having voluntarily signed their signatures as Exs.P1 to P3 in Ex.P4 panchanama, during trial in the lower Court, they pretend that they do not know anything else about the panchanama, except their signatures, after having been won over by the accused for consideration. It is evidence of PWs 4 and 6 that they went to the land and seized ganja plants from land of the accused in the presence of PWs 1 to 3, when Ex.P4 panchanama was prepared in which all of them signed. It is evidence of PWs 4 and 6 that after preparing MO.1 sample packet with plucked out and seized ganja plants, rest of the ganja plants were destroyed at the scene itself. When MO.1 packet was sent to the Government Chemical Examiner for Prohibition and Excise Department, after examining the same, Ex.P7- Chemical Examiner’s report was sent to the effect that the sample was ganja. PW4 sent MO.1 packet to the laboratory after registering Ex.P4 panchanama and issuing Ex.P5- Crime and Occurrence Report. 4. Ex.P5 is copy of pahani for the land in Sy.No.339/A of the village. It shows that out of total extent of Ac.9.24 cents therein, Ac.2.10 cents was registered in the name of V.Narayana with patta No.85 and it is in actual possession of the accused during that year. It undoubtedly proved that it was the accused who had grown ganja plants in the land in his possession. 5. There is no evidence to show whether Section 57 of the Act is complied with or not in this case. In any event, the lower Court rightly noticed that non-compliance of Section 57 of the Act does not vitiate the trial, as the said provision is not mandatory. Section 42 of the Act has no application herein as the scene of offence is not an enclosed place or building. The lower Court rightly came to the conclusion that the accused is guilty of the charge. I do not find any valid or legal reasons to come to a different conclusion in this appeal. In any event, this Court finds that sentence of imprisonment recorded by the lower Court is on higher side. 6. In the result, the Criminal Appeal is dismissed, altering period of imprisonment from three years to six months. ______________________________ JUSTICE SAMUDRALA GOVINDARAJULU Dt:19.12.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2087 of 2004 Dt:19.12.2011 ysk