THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL No. 2256 of 2004 DATE: 18-02-2011 Between: Mogili Madhu .. Appellant And The State of A.P., through S.H.O., Guntur Taluq Police Station, Guntur, rep. by Public Prosecutor, High Court of A.P., Hyderabad. .. Respondent THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL No. 2256 of 2004 JUDGMENT: This appeal arises out of the conviction and sentence passed by the I Additional Sessions Judge, Guntur in Sessions Case No.38 of 2001 on 20.10.2004. 2. The appellant herein was prescribed punishment for the offence under Section 8(c) read with Section 20(b)(i) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the N.D.P.S. Act”) alleging that on 11.04.2001 at about 7.30 p.m. the accused was found in possession of two packets of ganja in his right side pant pocket each of 50 grams in weight and he was apprehended by P.Ws. 2 and 3 in the presence of P.W.1 and seized the said ganja and took samples from each packet and registered the case in Crime No.83 of 2001 under Section 8(c) read with Section 20(b)(i) of the N.D.P.S. Act of Guntur Taluq Police Station and the sample packers were sent for analysis to Government Chemical Examiner for Prohibition & Excise, Regional Prohibition & Excise Laboratory, Guntur, who examined the sample packets and found the same to be ganja. Thus, according to the prosecution, the accused was committed the offence and hence, he is liable for punishment under Section 8(c) read with Section 20(b) (i) of the N.D.P.S. Act. 3. The learned I Additional Sessions Judge, Guntur has framed a charge under Section 8(c) read with Section 20(b)(i) of the N.D.P.S. Act against the accused and the accused pleaded not guilty for the said charge. 4. The prosecution in order to establish the said charge, examined P.Ws.1 to 3, and marked Exs.P-1 to P-7 and M.Os.1 to 4. No oral or documentary evidence were produced on behalf of the accused in defence. 5. The learned I Additional Sessions Judge, Guntur by taking into consideration of the said oral and documentary evidence, found the accused guilty for the charge under Section 8(c) read with Section 20(b)(i) of the N.D.P.S. Act and convicted and sentenced to undergo rigorous imprisonment for eight months and to pay fine of Rs.8,000/- in default for simple imprisonment for eight months. 6. Aggrieved by the said conviction and sentence, the present appeal is filed. 7. No representation was made on behalf of the appellant and the matter is coming up for hearing. Hence, the appeal is being disposed of basing on the material available on record. 8. As per the grounds of the appeal, the contention of the appellant is that the mandatory provision of Sections 42, 50 and 57 of N.D.P.S. Act have not been complied with and the P.W.1, the mediator, is a stock witness for the prosecution and the punishment imposed is disproportionate to the offence alleged to have been committed by the accused. 9. According to the prosecution, on 11.04.2001 at about 7.30 p.m. on information P.W.2, the Inspector of Police, Guntur Rural along with his staff P.W.3, Sub-Inspector of Police, Guntur Taluq Police Station and P.W.1 the mediator K.Hanumantha Rao and Daliparthi Satyanarayana, another mediator, rushed to Budampadu bridge and found the accused waiting there and tried to skulk away on seeing the police but he was surrounded and caught by his staff. The accused was found in possession of two packets of ganja in his right side pant pocket of 50 grams each. 10. The Inspector of Police, P.W.2 has seized the said two ganja packets from the possession of accused under cover of mahazar and drawn the samples and sent the samples for analysis. The said samples are containing ganja. The said Inspector of Police has examined as P.W.2 and he has narrated the same facts as mentioned in the charge sheet. In his chief examination he has specifically stated that on receipt of the information on 11.04.2001 at about 6.30 p.m. that a person is selling ganja at Budampadu cross road, he immediately informed the same to the Deputy Superintendent of Police and in pursuance of his instructions he secured the presence of two mediators Daliparthi Satyanarayana and K.Hanumantharao and along with them himself and Sub-Inspector of Police, Guntur Taluq left police station at about 7.00 p.m. and found one person going helter and skelter on seeing the police party at Budampadu bridge and caught hold of him and the said person has disclosed that he is in possession of ganja and thereby running away. Then he informed that accused that he has got a right to have the presence of a Gazetted Officer or Magistrate for search and the accused replied that he does not want the presence of any Gazetted Officer or Magistrate and he can search and seize the said ganja from his possession and then the accused produced two ganja packets before him by taking them from his right pant pocket, which are marked as M.Os. 1 and 2 and at that time the mediators were present. He has taken one sample from each packet and seized the same in the presence of Sub-Inspector of Police and mediators. The said sample packets are M.Os.3 and 4. The mediators’ report was drafted and it is Ex.P-1. The said report was attested by mediators Daliparthi Satyanarayana and P.W.1 K.Hanumantha Rao, himself and the Sub-Inspector of Police Seetharamaiah and the police constables. He arrested the accused and informed the arrest in the presence of mediators and obtained his signature with the acknowledgment on Ex.P-1 and took him to the Police Station and registered the case and Sub-Inspector of Police took up further investigation. Nothing was elicited in the cross- examination with regard to his information to the Deputy Superintendent of Police or with right to be searched in the presence of a Gazetted Officer or Magistrate. But he has admitted in the cross- examination that no mention was made about the compliance of Section 50 of the N.D.P.S. Act in Ex.P-1 mediators’ report and he has also denied about his acquaintance with the mediator P.W.1 prior to that date. 11. P.W.3, the Sub-Inspector of Police, supported the version of the P.W.2 with regard to said seizure of M.Os.1 and 2 from the possession of the accused in the presence of mediators P.W.1 and another and also informed about the right to search in the presence of Gazetted Officer or Magistrate for which accused did not avail that opportunity. 12. P.W.1, a mediator, K.Hanumantha Rao, has also stated about P.Ws.2 and 3 calling him and Daliparthi Satyanarayana to the Police Station and then took them to the Budampadu bridge and finding the accused at that place and he disclosed about the possession of the ganja and the Inspector of Police informed him that he is entitled to be searched in the presence of Gazetted Officer or Magistrate but he did not avail the opportunity, then seized the packets of ganja from his possession and drawn two samples from each packet and packed in two separate sample packets and he identified the M.Os.1 and 2 are the packets from the possession of the accused, M.Os.3 and 4 are the sample packets taken from M.Os.1 and 2 and he has signed on the mediators’ report Ex.P-1. In the cross-examination he admitted that he acted as mediator in four cases in that Police Station. He further stated that he was present when the ganja seized from the accused, as the material seized was ganja that he came to know that it is ganja when accused revealed the same. The identity slips, which were pasted to the ganja packets M.Os.1 and 2, were signed by the Sub-Inspector of Police. Therefore, from the above evidence, it is evident that the P.W.2 after receipt of information, informed to the Deputy Superintendent of Police and as per the instructions he collected the mediators and proceeded to scene of occurrence and apprehended the accused and seized the material from the possession and from the evidence of P.Ws.1 to 3 it is clearly established that the accused was informed about his right to search in the presence of Gazetted Officer or Magistrate but he has not availed that opportunity. Therefore, from the above evidence, it is established that the prosecution complied with the mandatory provisions of Sections 42, 50 and 57 of N.D.P.S. Act. Therefore, the ground raised by the appellant in the grounds of appeal that the mandatory provisions are not complied with, cannot be accepted. 13. The next ground taken in the grounds of appeal that P.W.1 is the stock mediator. P.W.1 admitted in the cross examination that he acted as mediator in four cases of that Police Station. That does not mean that he is a stock mediator for the police. Moreover, nothing was elicited from the cross-examination with regard to the type of cases in which he has acted as mediator in earlier occasions and there is no enemity between the accused and P.W.1 to falsely implicate in this case. Even if the contention of the appellant is accepted that the P.W.1 is a stock mediator, the other evidence of P.Ws.2 and 3 corroborate with each other with regard to seizure of the M.Os.1 and 2 from the possession of the accused. The learned I Additional Sessions Judge, Guntur relied upon a decision rendered by the Apex Court in Tasawwar Ansari vs. Union of India[1] that “the evidence of the police officer cannot be totally disbelieved and the departmental witnesses per se are not got up witnesses and their evidence cannot be discarded simply because they are people of the department”. With regard to the compliance of Sections 42, 50 and 57 of N.D.P.S. Act, the learned I Additional Sessions Judge, Guntur has relied upon a decision reported in State of Punjab vs. Baldev Singh[2], wherein the Apex Court has held that, “no specific mode or manner is prescribed or intended for the compliance of Sections 42, 50 and 57 of the N.D.P.S. Act and it is for the Court to see the substance and not the form of intimation. Reasonable, fair and just procedure to be adopted. 14. In the present case as already observed above, the P.W.2 has intimated to the Deputy Superintendent of Police about the receipt of information about the selling of ganja at Budampadu bridge and then they proceeded. With regard to the compliance of Section 50 of the N.D.P.S. Act, P.Ws.1 to 3 have specifically stated that they have informed to the accused about the right to be searched in the presence of Gazetted Officer or Magistrate but he has not availed the same. Simply because the same was not mentioned in Ex.P1 mediators’ report, it cannot be said that such an opportunity was not given to the accused. Therefore, in view of the above, the learned Additional Sessions Judge has rightly come to the conclusion that the prosecution has established the offence punishable under Section 8(c) read with Section 20(b)(i) of the N.D.P.S. Act. 15. The next ground taken by the appellant in the grounds of appeal is that the punishment imposed is disproportionate to the offence committed having regard to the quantum of ganja. In the present case, admittedly, the ganja that was seized from the possession of the accused is two packets weighing 50 grams each. Thus, total ganja that was seized from the possession of the accused is 100 grams. As per Section 20 (b)(ii) of the N.D.P.S. Act, S.20 (b) (ii) where such contravention relates to sub-clause (b),- (A) and involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both; 16. In the present case, admittedly, the quantity seized involved is 100 grams of ganja and the learned Additional Sessions Judge has imposed the sentence of rigorous imprisonment for eight months and to pay fine of Rs.8,000/- in default simple imprisonment for eight months. In view of the quantity of ganja involved in the present case, the said punishment imposed by the learned Additional Sessions Judge is highly excessive and the accused is liable to be punished with the minimum punishment prescribed under Section 20(b)(ii)(A) of the N.D.P.S. Act. Hence, the accused is sentenced to undergo rigorous imprisonment for a period of six months and to pay fine of Rs.5,000/- (Rupees five thousand only) in default to undergo simple imprisonment for three months. 17. In the result, the appeal is dismissed confirming the conviction passed by the learned I Additional Sessions Judge, Guntur in S.C.No.38 of 2001 dated 20.10.2004, but the sentence is modified to that of rigorous imprisonment for six months and to pay fine of Rs.5,000/- (Rupees five thousand only) in default to undergo simple imprisonment for three months. ___________________ P.DURGA PRASAD, J 18-02-2011 MR THE HON’BLE SRI JUSTICE P.DURGA PRASAD Crl.A.No. 2256 of 2004 DATE: 18-02-2011 MR [1] 1988 (1) Crl.L.J. (All.) 337 [2] 1999 (6) SCC 172