THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.31 of 2006 BETWEEEN: Syed Akthar @ Babul … Appellant AND The State of A.P. rep. by its P.P. … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.31 of 2006 JUDGMENT: The appellant/accused was convicted by the lower Court under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) and was sentenced to rigorous imprisonment of one year and fine of Rs.1,000/-. Questioning the same, the accused filed this appeal. It is alleged that on 21.12.2002 at about 6:45 A.M., the accused was going along with MO.1 bag containing ganja at RTC bus-stand, Nirmal, and that PW5 during patrolling work noticed the same and seized MO.1 bag from his possession under the cover of Ex.P2-Panchanama in the presence of mediators, including PW1 and Gazetted Officer PW2. Plea of the accused is one of not guilty and total denial. After trial, the lower Court found him guilty of the charge. 2. PW1 is a cobbler. He is one of the mediators in Ex.P2-Panchanama. He admits his Ex.P1 signature in Ex.P2- Panchanama. But he turns hostile to the prosecution by saying that the Police called him to the Police Station and obtained his Ex.P1 signature on white paper. Whereas PW2 supported the prosecution case. PW2 is working as Principal in Government Junior College, Echoda, Adilabad District. On the date of offence, he was working as lecturer in Government College, Nirmal. It is his evidence that on 21.12.2002, when he was coming from bus-stand to go to his college, Sub-Inspector of Police requested him at about 7:00 A.M. to act as panch witness and he went there. He says that already two panchas and the accused were present and that the accused was carrying 10Kgs. of ganja and that the accused gave confession to the effect that he purchased ganja at Nizamabad and wanted to sell the same at Bokar, and that Panchanama was conducted in his presence and ganja was seized under the cover of Panchanama. He further speaks to taking of samples of ganja from the seized quantity of ganja. MO.2 is the sample packet. Even though it was not mentioned that the property was seized in his presence, it was endorsed therein that the entire statement was recorded in his presence. Though this is not a case involving personal search of the accused, PW5 who is Sub- Inspector of Police, took care to see that Section 50 of the Act is complied with by involving presence of a Gazetted Officer like PW2 at the time of seizure of contraband and recording of statement of the accused. The said statement of the accused is a relevant piece of evidence under Section 53-A of the Act. 3. Apart from the Sub-Inspector of Police being examined as PW5, the prosecution also examined PWs 3 and 4 who worked as constables along with PW5 and who were accompanying PW5 on the date of offence. PWs 3 to 5 speak to finding the accused with a bag in suspicious circumstances at RTC bus-stand, Nirmal, searching the bag and finding ganja of about 10Kgs. therein and conducting of Panchanama for seizure of the said ganja and arrest of the accused. Ex.P3- First Information Report was issued on the basis of Ex.P2- Panchanama. When the sample packet was sent to Government Chemical Examiner of Prohibition and Excise, Regional Prohibition and Excise Laboratory, Nizamabad, after analysis Ex.P4 report was sent opining that the sample is ganja. 4. Section 42(2) of the Act has no application in this case since PW5 has not proceeded to the spot on information, but PW5 found the accused with ganja bag MO.1 at RTC bus- stand during the course of his routine and casual patrolling work. Further, the accused was not arrested and no search was conducted in any building or conveyance or enclosed place. Therefore, there was no legal obligation on the part of PW5 to follow the procedure prescribed under Section 42(2) of the Act. Further, Section 57 of the Act is held to be not mandatory. In any event, after registration of Ex.P2 Panchanama as Ex.P3- First Information Report, immediately the Inspector of Police, Nirmal, who is the superior officer of PW5, took up investigation in this case. Thus, there are no legal violations of any mandatory procedures under the Act in this case. In that view of the matter, the lower Court rightly recorded guilt of the accused. I do not find any valid or legal reasons to come to a different conclusion in this appeal. The sentence of imprisonment awarded by the lower Court is also appropriate having regard to facts of the case. 5. Hence, the Criminal Appeal is dismissed. ______________________________ JUSTICE SAMUDRALA GOVINDARAJULU Dt:27.10.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.31 of 2006 Dt:27.10.2011 ysk