THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO. 898 OF 2004. DATED: 16-11-2009. Between: Kuttuboina Prabhavathi … Appellant/Accused and State of A.P. rep. By its Public Prosecutor, High Court of A.P. Hyderabad. … Respondent/Complainant THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO. 898 OF 2004. JUDGMENT: This Criminal Appeal by the appellant-accused under Section 374 (2) Cr.P.C., is directed against the judgment, dated 29-03-2004, in Sessions Case No. 414 of 2000, on the file of the Special Sessions Judge for N.D. & P.S. Act cases-cum-I Additional Sessions Judge, Ongole, whereunder and whereby the appellant-accused was convicted and sentenced to undergo Rigorous Imprisonment for a period of two years and also to pay a fine of Rs.2,000/-, in default to undergo Simple Imprisonment for a period of three months of the offence punishable under Sections 8 (c) r/w 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act’). 2. Brief facts, that are necessary for disposal of the present Criminal Appeal, may be stated as follows: The Probation and Excise Inspector along with his staff on 13-08-2000 at about 3.30 P.M. were patrolling in Ongole town for detecting probation and excise offences and when they reached opposite to P.V.R. High School, Ongole, they found the accused in possession of one bag on her left shoulder. On suspicion, Excise Officials detained the accused and on interrogation, the accused disclosed that the bag contained ganja. Then the Excise Inspector informed her about her right to be searched before a Gazetted Officer or a Magistrate, for which she replied that she does not require such search and confessed that the bag contained ganja. On verification, they found 3 ½ kgs of ganja in the form of flowering and fruiting tops of cannabis plant. On interrogation, the accused stated that she purchased the ganja from one unknown person in Warangal so as to sell the same in Ongole for wrongful gain. Then P.W.3 took out 50 grams of ganja as sample from 3 ½ kgs of ganja and sent the same for analysis. After analysis, the Chemical Examiner opined that the sample is ganja. After completion of investigation, P.W.3 filed the charge sheet. 3. When a charge under Section 8 (c) r/w 20 (b) (i) of the Act was framed, read over and explained to the accused in Telugu, she pleaded not guilty and claimed to be tried. 4. To substantiate the charge, the prosecution examined P.Ws. 1 to 3 and got marked Exs.P1 to P5 besides case property, M.Os.1 and 2. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating material found against her in the evidence of prosecution witnesses. She denied the same. No evidence either oral or documentary was adduced on behalf of the accused. 6. The trial Court upon consideration of entire oral and documentary evidence available on record, convicted and sentenced the accused as above. Challenging the same, the accused preferred this appeal. 7. Now the point that arises for consideration is whether the prosecution proved its case against the accused of the offence punishable under Section 8 (c) r/w 20 (b) (i) of the Act and whether the judgment of the trial Court is legal, correct and proper? 8. Learned counsel appearing for the appellant-accused contended that the Excise Officials did not call for any independent mediators at the time of search and seizure of the alleged contraband, that where search and seizure has been effected is a busy locality where number of independent mediators are available, by non calling the mediators, the prosecution violated sub-section 4 of Section 100 Cr.P.C., that therefore, the search is illegal and the corollary would also be illegal, that except the interested testimony of Excise Police, there is no other evidence, that this case has been foisted by Excise Police for statistical purpose and hence, she prays to set aside the conviction and sentence recorded against the accused. 9. On the other hand, counsel representing the learned Public Prosecutor opposed the same on the ground that even if the search is illegal, it is not necessary that seizure would be illegal, that if the evidence of Excise officials is found to be acceptable, then there is no legal bar to base a conviction on the testimony of Excise Officials and hence, she prays to dismiss the appeal. 10. The accused was found in possession of 3 ½ kgs of ganja. No independent mediator was present though the incident had taken place in a broad day light in a busy locality. The evidence of P.W.3 would go to show that on suspicion, he stopped the accused who involved in so many cases of ganja and found the bag containing ganja. Then he informed her about her right to be searched before a Gazetted Officer or a Magistrate, but the accused did not object for the search. When the search was conducted, they found 3 ½ kgs of ganja in the form of flowering and fruiting tops of cannabis plant. 11. Sub-section 4 of Section 100 Cr.P.C. reads thus: “Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the aid locality I available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.” The above provision makes it clear that the Investigating officer who is conducting investigation has to call for the respectable inhabitants, where search and seizure should be effected. No doubt, the Investigating Officer stated that he tried to call for mediators, but nobody came forward. Therefore, he conducted search. 12. Learned counsel appearing for the accused relied on a decision reported in GURMIT SINGH V STATE OF PUNJAB [1], wherein it was held thus: “The next contention of the learned counsel for the appellant is that the police have not joined any independent witness at the time of the alleged search and seizure and even the alleged independent witness-Dalip Singh has not been examined in this case, which goes to affect the case of the prosecution. Of course, the evidence of P.W.2-Jaswinder Singh is that Dalip Singh was also with them at the time of the alleged recovery. ASI-Darbara Singh (P.W.6) also stated that Dalip Singh was joined in the police party. But he has not been examined as a witness before the Court. P.W.2 stated in his evidence that he did not know if Dalip Singh is a convenient witness of the police of Police Station, Samana and if he had been cited as a witness in any other previous case in which he (P.W.2) was a recovery witness or even investigating officer. It is impossible to accept this type of evidence of P.W.2. He could have stated that he did not remember if Dalip Singh was a witness in any other case, but, to ay that he did not know if Dalip Singh was a convenient witness of the Police Station, Samana or if he had been cited as a witness in any of his previous case, I wholly unacceptable. It is clear that he had only tried to suppress the fact that Dalip Singh was a stock witness of their police Station. Of course, ASI-Darbara Singh (P.W.6) who was later examined made bold to deny that Dalip Singh was joined by him in any other case as a witness. But this still does not have the effect of improving upon the evidence of P.W.2 whose evidence shows that Dalip Singh must be a stock witness of the Police Station, Samana. Further, p.W.6 admitted in his evidence that he did not try to associate any independent respectable person from the nearby villages before effecting search. He stated that he did not feel the necessity of joining any other independent witness from the passer by as they already had a respectable witness namely Dalip Singh. In view of what I have pointed out above, Dalip Singh could not be called a respectable witness much less the respectable witness of the locality. This apart, even this alleged respectable witness who was joined by the police at the time of the alleged search and seizure, was not examined as a witness before the Court. “ 13. But, in view of law laid down by the Constitutional Bench of the Apex Court reported in STATE OF PUNJAB V BALDEV SINGH [2], wherein it was held thus: “The provisions of Sections 100 and 165 Cr.P.C. are not inconsistent with the provisions of the NDPS Act and are applicable for affecting search, seizure of arrest under the NDPS Act also. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure comes across a person being in possession of the narcotic drugs or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided thereunder. If the investigation officer is not an empowered officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from the stage in accordance with the provisions of the NDPS Act. I n Balbir Singh’s case after referring to a number of judgments, the Bench opined that failure to comply with the provisions of Cr.P.C. in respect of search and seizure and particularly those of Sections 100,102, 103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the Courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the Court should bear in mind that there was such a violation and evaluate the evidence or record keeping that in view.” 14. The above decision makes it clear that search is illegal, the seizure would not be affected in any manner because of illegal search. It is also equally well settled that simply because P.Ws. 1 to 3 are Excise officials, that does not mean, their evidence has to be rejected on that ground. Their evidence has to be appreciated like that of any other evidence. If they had any enmity or grouse in foisting a false case, then only their evidence requires corroboration. If the evidence of Police Officers is found to be true and trustworthy, there is no legal bar for accepting their evidence. Even after the lengthy cross-examination of these witnesses, nothing has been elicited to infer that they have got enmity or grouse against the accused so as to implicate her in a case of this nature. If they want to foist a false case, they would have planted huge quantity of ganja, but not a small quantity. All other provisions have been complied with i.e. duly informing about finding of ganja with the accused, registering the case and forwarding the F.I.R. to Court. The Chemical Examiner who analysed the sample opined that the substance having characteristic odour consisting of flowering top fruiting tops and seeds weight 50 gms. From the evidence of P.W.3 coupled with report of the Chemical Examiner, it is clear that ganja in question was seized from the possession of the accused. Though Excise Officials tried their best to secure the independent mediators, but nobody came forward to act as mediators. Therefore, there is no reason to disbelieve the evidence of P.Ws. 1 to 3. Perhaps that is the reason why, the trial Court placed implicit reliance on the evidence of P.Ws. 1 to 3 in convicting the accused. Therefore, from the evidence, it is clear that the accused violated Section 8 (c) of the Act. The accused is found guilty of the offence punishable under Section 20 (a) of the Act, punishable under Section 20(i) of the Act, where punishment may extend to 10 years. For contravention of other provisions of this Act and involves small quantity, the punishment may extend to six months. If it is a lesser than commercial quantity, the punishment may extend to 10 years. Where a person was found in possession of commercial quantity, punishment is extended to 20 years. As per the notification No. S.O. 527 (E), dated 16-07-1996, issued by the Ministry of Finance, Department of Revenue, if the ganja is less than 1 kg, it is a small quantity. If it is more than 1 kg and less than 20 kgs, it is lesser than commercial quantity and greater than small quantity and the punishment may be extended to 10 years. If the quantity exceeds 20 kgs, then it can be said to be commercial quantity. Except this case and another case, there is no evidence to show that the accused was involved in other cases. Therefore, considering the small quantity of ganja and the age of the accused, the sentence can be reduced from two years R.I. to six months R.I. 15. Accordingly, the Criminal Appeal is partly allowed confirming the conviction of the appellant-accused of the offence punishable under Section 8 (c) r/w 20 (b) (i) of the Act, recorded by the Special Sessions Judge for N.D. & P.S. Act cases-cum-I Additional Sessions Judge, Ongole, in its judgment, dated 29-03- 2004, in Sessions Case No.414 of 2000, but reducing the sentence from two years Rigorous Imprisonment to six months Rigorous Imprisonment, while maintaining the fine amount with default sentence. The sentence imposed against the appellant-accused in this case and also in Crl.A.No.897 of 2004 shall run concurrently. Period of remand, if any, undergone by the appellant-accused during the course of investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C. --------------------- K.C.BHANU, J DATED: 16-11-2009 Hsd [1] 1998 CRL.L.J. 4696 [2] 1999 (2) ALD (CRL) 279 (SC)