THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.2312 of 2004 BETWEEEN: Devara Sreenivasa Rao … Appellant AND State of Andhra Pradesh … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2312 of 2004 JUDGMENT: The appellant/A2 was convicted by the lower Court under Section 8(c)/20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) and was sentenced to rigorous imprisonment of eight months and fine of Rs.8,000/-. Questioning the same, A2 filed this appeal. It is alleged that on 11.06.2000 at about 1:30 P.M., near Anjaneya Swamy Temple of Seethanagaram Village, A2 was found to be in possession of fifteen packets of ganja weighing 5gms each and selling the same. Plea of the accused is one of total denial and not guilty. After trial, the lower Court found him guilty of the above charge. 2. Except the evidence of PW1, who is the then Sub- Inspector of Police, Tadepalli Police Station, there is no other evidence before the Court to prove the offence. It is evidence of PW1 that when he and along with his staff were on patrolling duty, he received credible information to his cell phone about three persons selling ganja near Lord Anjaneya Swamy Temple of Seethanagaram and that immediately he informed the same to his Inspector of Police, Mangalagiri Circle (PW2) by cell phone and he asked him to proceed to the scene immediately and catch the culprits. After going to the scene at Anjaneya Swamy Temple of Seethanagaram, PW1 is said to have caught A1 to A3 while in possession of ganja packets. PW1 says that when he caught A2, A2 gave statement to the effect that he was selling ganja in small packets by purchasing the same at Vijayawada, and that A2 produced ganja packets of 5gms each taking them out of his pant pocket. PW1 further says that when he questioned A2 about requirement of his search in the presence of Gazetted Officer, A2 stated that it was not necessary. According to PW1, he seized those fifteen packets of ganja under the cover of Ex.P1- Police proceedings as nobody came forward to function as mediator. Out of fifteen packets seized from A2, 14 packets were marked as MO.5 and the sample ganja packet is marked as Mo.2. After analysis, Ex.P6 laboratory report was received to the effect that the sample is ganja. 3. The lower Court found that there is sufficient compliance of mandatory provisions contained in Sections 42, 50 and 57 of the Act. The lower Court further observed that mode of communication of the information to the superior officer is not prescribed and it can be any mode. Section 42 of the Act contemplates reducing the information received by the Police Officer into writing and forwarding the same to his immediate superior. In this case, PW1 went to the scene on receipt of credible information through his cell phone. Though PW1 conveyed the said information to his superior officer, PW2 by cell phone, he did not reduce the said information into writing and did not forward the said written information to his immediate superior officer. The lower Court failed to note that there is no non- compliance of mandatory provision under Section 42 of the Act in this case, since the scene of offence is neither a building nor an enclosed place. 4. There is no dispute that compliance of Section 50 of the Act is mandatory. Ganja packets were seized by PW1 when A2 is stated to have taken out the same from his pant pocket. It shows that A2 was in personal, physical possession of the said ganja packets. When it is a case of personal search, PW1 should have taken A2 either to a Magistrate or to a Gazetted Officer for making search and seizure of ganja packets. It is not as if PW1 gave any written notice to A2 offering taking of A2 to a Magistrate or Gazetted Officer and A2 declined the said facility. The ipse dixit of PW1 on this aspect cannot be believed. It is a valuable right of the accused for his search in the presence of a Magistrate or a Gazetted Officer, under Section 50 of the Act. This mandatory provision is not complied with in this case. 5. Section 57 of the Act contemplates sending a special report to the immediate superior after arrest and seizure of contraband from the accused. There was no attempt made by PW1 to send report accordingly to his superior officer within the specified time. Of course, compliance of Section 57 of the Act is held to be directory and not mandatory. Non-compliance of Section 57 of the Act may not be fatal to the prosecution. 6. There is no compliance of even Section 51 of the Act in this case in as much as the contraband was not seized in the presence of two mediators as contemplated under Section 100 Cr.P.C. It is not a god forsaken place where there was no availability of mediators. Ganja is said to have been seized in this case at Anjaneya Swamy Temple in Seethanagaram village. Apart from PW1, there were staff accompanying him. It cannot be believed that they could not secure mediators for seizing the contraband under the cover of mediators report. 7. The lower Court totally erred in finding the accused guilty and in finding that there is sufficient compliance of mandatory provisions of the Act in this case. I do not agree with reasoning and finding of the lower Court on these aspects. 8. In the result, the Criminal Appeal is allowed setting aside the conviction and the sentence passed by the lower Court against the appellant/A2 and acquitting him. ______________________________ JUSTICE SAMUDRALA GOVINDARAJULU Dt:12.12.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2312 of 2004 Dt:12.12.2011 ysk