THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.2082 of 2004 BETWEEEN: Peeravali Siva Prasad … Appellant AND State of A.P. rep. by Public Prosecutor … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2082 of 2004 JUDGMENT: The appellant/accused was convicted by the lower Court under Section 20(b)(i)/8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) and was sentenced to rigorous imprisonment of six months and fine of Rs.5,000/-. Questioning the same, the accused filed this appeal. 2. It is alleged that on the intervening night of 27/28-12- 2000 at about 12:15 A.M., when PWs 1 to 3 along with others, raided the house of one Sattenapalli Tirupathaiah at Door No.7- 17-21 of 7th line, 5th Cross of Srinagar, Guntur, they found 12 persons including the accused playing Kothamukkalata by way of gambling with cards and that the accused was possessing 100 gms. of ganja in a packet in his pocket. Though the accused along with 11 others admitted gambling at that place with playing cards in a separate case, in this case, the accused pleads not guilty and denies the entire prosecution allegations. In support of the prosecution, the Police Officers were examined as PWs 1 to 3. After trial, the lower Court found the accused guilty of the charge. 3. In this appeal, it is contended by the appellant’s counsel that there are no independent witnesses for the alleged seizure of ganja from possession of the accused and that there is non-compliance of mandatory provisions of the Act in this case. Section 51 of the Act contemplates compliance of relevant provisions of Cr.P.C. at the time of search, seizure, arrest etc. The scene of offence in this case is a residential locality in Guntur Town. It is evidence of PW3, who is the then Assistant Superintendent of Police, Guntur, that Head Constable by name Baburao and another Police Constable were sent to bring mediators, but they could not bring the mediators. Therefore, PWs 1 to 3 proceeded with recording the Police proceedings by way of Ex.P1. Though it is a residential locality, since it was mid night, there is every possibility of the Police being unable to secure mediators from the locality. Since the Police party proceeded to the scene on credible information about indulging in gambling at that place, the Police party could have picked up mediators while starting from the Police Station. It is not as if booking of the case was unexpected. Though the case under the Act was unexpected, the case under the A.P. Gambling Act was expected and the Police had prior information about the same. No reason is put forward by the Police witnesses as to why they could not reach the scene along with mediators as they were raiding that place on information about commission of cognizable offence at that place. The prosecution also did not examine either Head Constable Baburao or the other constable, who were deputed for bringing mediators and who were unable to bring mediators at that point of time to the scene. Even though PWs 1 to 3 satisfied themselves by resorting to Ex.P1 Police proceedings, surprisingly, on Mos.1 and 2, two individuals other than police officials, signed. PWs 1 to 3 admit that Mos.1 and 2 contain signatures of two independent persons. MO.1 is sample packet of ganja and Mo.2 is remaining ganja packet said to have been seized from the accused. PW1 deposed that Mos. 1 and 2 contained signatures of Daliparthi Satyanarayana and Hanumantha Rao and that he does not know how those signatures came on the identity slips. PW2 deposed that there is signature of Daliparthi Satyanarayana and another person on Mos.1 and 2. PW3 deposed that she cannot say who the said persons were. In the absence of any valid explanation as to how names of two outsiders came on identity slips affixed on Mos.1 and 2, it cannot be believed that the Police party could not secure mediators at the time of seizure of ganja at the scene from the alleged possession of the accused. In Ex.P1 proceedings also, it was not mentioned that inspite of sending Head Constable Baburao and another Police Constable, they could not secure mediators for drafting mediators report. In these circumstances, I have no hesitation to come to the conclusion that Section 51 of the Act is not complied with in this case. 4. PW3 is a Gazetted Officer herself. The ganja packet was said to be found in the pocket of the accused. It was in his personal possession. Therefore, Section 50 of the Act comes into operation herein. Simply because PW3 who is a Gazetted Officer is present in the raid party, it cannot be contended that there is sufficient compliance of Section 50 of the Act in this case. Further, it is evidence of PWs 1 to 3 that PW3 disclosed herself being Gazetted Officer and questioned the accused whether he requires presence of any other Gazetted Officer or Magistrate for searching him. No Police official searched pocket of the accused. According to PWs 1 to 3, the accused himself took out the said ganja packet. It is their further evidence that the accused stated that there was no necessity to take him to any Gazetted Officer or Magistrate. Appraisal of the accused about presence of Gazetted Officer/PW3 in the Police party and about his right to be examined in the presence of a Gazetted Officer or Magistrate and about disclaimer of the said right by the accused, are not borne out by record. Ex.P1- Police proceedings does not contain the said appraisals or disclaimer. In the absence of any material on record about the appraisals and disclaimer, it cannot be believed that the Police officials in this case satisfactorily complied with Section 50 of the Act. Section 42 of the Act has no application herein because, the information received by PW3 was not with regard to ganja, but it was with regard to gambling den. Therefore, there was no necessity for her to reduce the said information into writing and forwarding the same to her immediate superior before proceeding with the raid. Also, failure to comply with Section 57 of the Act may not vitiate the trial as it was held to be not mandatory. In any event, it is evidence of PWs 2 and 3 that PW3 informed the Superintendent of Police by V.H.F. set about arrest and seizure in this case. 5. In view of deficiency in complying with mandatory provisions of Sections 50 and 51 of the Act in this case, I am of the opinion that the accused is entitled for acquittal. I do not agree with reasoning and conclusion of the lower Court. 6. In the result, the Criminal Appeal is allowed setting aside the conviction and the sentence passed by the lower Court against the accused/appellant and acquitting him. ______________________________ JUSTICE SAMUDRALA GOVINDARAJULU Dt:19.12.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2082 of 2004 Dt:19.12.2011 ysk