* THE HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU + CRIMINAL APPEAL No.2509 of 2004 % 05.09.2011 # Sadula Odelu …Appellant Vs. $ State of A.P. rep. by Public Prosecutor …. Respondent ! Counsel for the Petitioner: Sri D.Bhaskar Reddy ^Counsel for Respondents: Public Prosecutor <Gist : >Head Note: ? Cases referred: [1] 2011 (1) ALD (Crl.) 285 (SC) [1] 2011(8) SCALE 434 [1] 2009(1) ALT (Crl.) 264 [1] 2006 (1) ALT (Crl.) 32 (A.P.) THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.2509 of 2004 BETWEEEN: Sadula Odelu S/o.Mallaiah … Appellant AND State of A.P. rep.by Public Prosecutor … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2509 of 2004 JUDGMENT: The appellant/accused was convicted by the lower Court under Section 8(b)/20(a)(i) of the Narcotic Drugs and Psychotropic Substances Act (in short, the ‘NDPS Act’) and was sentenced to rigorous imprisonment for six months and fine of Rs.5,000/-. Questioning the same, the accused filed this appeal. It is alleged that the accused was cultivating 411 Ganja plants in Ac.1.13cents in S.No.425/B of Rachepalli Village and that when the Excise officials along with Revenue officials raided the land, it was detected by them on 20.11.2001. Plea of the accused is one of total denial and not guilty. During trial in the lower Court, both the mediators, PWs 1 and 2 and the Village Officer PW3, turned hostile to the prosecution. The lower Court ultimately found the accused guilty of the charge. 2. It is contended by the appellant’s counsel that as per Ex.P5-Copy of Pahani, S.No.425/B consists of Ac.2.26 guntas, out of which Ac.1.13 guntas is noted to be in possession of Sadula Lingaiah and Ac.1.13 guntas is noted to be in possession of the accused by name Sadula Odelu, S/o. Mallaiah and that there is no evidence to show on which part of S.No.425/B, land of the accused is located and in which side of the said survey number, cultivation of Ganja is there. It is further contended that when PW3 who is the Village Officer, turned hostile to the prosecution, there is no evidence on record to show that the land from which 411 Ganja plants were seized, belongs to the accused. PW4 is the then Mandal Revenue Officer, Jammikunta Mandal, who accompanied the Excise officials during raid. He says that he accompanied Excise officials to Mallannapalli village to the fields in S.No.425/B, out of which Ac.1.13 guntas was found to be in possession of the accused and that they found 411 Ganja plants grown in the midst of cotton plants. Ex.P4 is Panchanama prepared at the scene. It reads that the officers enquired Village Administrative Officer in the presence of PW4 and that the Village Administrative Officer informed that the said land in S.No.425/B is measuring Ac.2.26 guntas and that out of the said land, Ac.1.13 guntas of land is in possession of Sadulu Odelu and that the said Ganja plants are in the land of Odelu, which came to his share. Boundaries of the said land are also noted in Ex.P4. It is contended by the appellant’s counsel that boundary owners of the said land were not examined by the prosecution. When the prosecution intended to prove location of the land and possession of the land by examining Revenue officials and by production of Pahani, it may not be necessary for the prosecution to examine boundary owners of the land also. PW3 though turned hostile to the prosecution to some extent, deposed in his Examination-in-Chief that the accused owns approximately Ac.2.00 of land in S.No.425/B. There is no cross- examination of PW3 on this aspect by the defence counsel in the lower Court. In any event, it is not the prosecution case that there were 411 Ganja plants in the entire land of Ac.2.26 guntas, but Ganja plants were there only in Ac.1.13guntas, which is in possession of the accused. PW4 in cross-examination deposed that the current year Pahani is maintained by the Village Administrative Officer and that they ascertained the survey number with the help of Village Administrative Officer. Even during trial, the Village Administrative Officer as PW3, deposed that the accused is having approximately Ac.2.00 of land in S.No.425/B. 3. It is further contended by the appellant’s counsel that there is no compliance of Section 42(2) of the Act in this case. PW5 is the then Excise Inspector, Jammikunta Excise Station, who raided the land of the accused and detected the offence. He says that on 20.11.2001, he received information about illegal cultivation of Ganja at Rachepalli, which is hamlet of Mallannapalli Village. It is contended that PW5 did not speak about reducing the said information in writing and sending the said information to his immediate superior before proceeding to the land and that failure to comply with Section 42(2) of the Act vitiates the prosecution case as the said provision is mandatory. It is further contended that there is non-compliance of Section 57 of the Act also. There is no dispute that Section 57 of the Act is not a mandatory provision and any failure to comply with the same, does not vitiate the trial. The petitioner’s counsel placed reliance on State of Karnataka Vs. Dondusa Namasa Baddi[1] and RAJENDER SINGH Vs. STATE OF HARYANA[2] of the Supreme Court in support of his contention on Section 42(2) of the Act. This point relating to non-compliance of Section 42(2) of the Act was not raised by the defence counsel in the lower Court. Therefore, the lower Court had no occasion to consider the said aspect. Placing reliance on MEGHAVATH KISHAN FAKEERYA Vs. STATE OF A.P.[3] of this Court, it is contended by the appellant’s counsel that since it is purely a question of law, it can be advanced at any stage of the proceedings. No doubt, the question relating to non-compliance of Section 42(2) of the Act would be purely a question of law, in case facts relating thereto are there already on record; otherwise it becomes a mixed question of fact and law. Further placing reliance on Mankena Rangaiah Vs. State of A.P.[4] of this Court, it is contended that when the prosecution was unable to produce positive evidence relating to the compliance of the mandatory provisions under Section 42(2) of the Act, there is no duty cast upon the accused as such, to put such questions seeking further clarification, filling up such lacuna in the version of the prosecution. In that case, there was no evidence of the Excise officials (PWs 2 and 3) about compliance of mandatory provisions. 4. In the case on hand, PW5 did not speak anything about compliance of Section 42(2) of the Act by way of recording information received by him into writing and forwarding the same to his immediate official superior within the prescribed time. But in cross-examination, PW5 denied the suggestion of the defence counsel to the effect that he did not comply with the mandatory provisions of NDPS Act. The said denial of the suggestion amounts that he complied with the requirements of the Act. It is contended that though PW5 stated that he complied with the provisions of the Act, there is no proof for the same. Non- compliance of mandatory provisions under the Act is entirely different from non-production of proof by the prosecution showing compliance of the said mandatory provisions of the Act. There is no further cross-examination of PW5 to the effect that he did not reduce the information into writing and did not forward the said information to his immediate official superior. In the absence of further cross-examination of PW5 on this aspect and in the wake of assertion of PW5 about compliance of all the mandatory provisions under the Act, I am of the opinion that there is no material on record to show that the prosecution has failed to comply with the mandatory provision under Section 42(2) of the Act. In case, this question was raised by the defence counsel in the lower Court, then the lower Court would have been in a position to get clarification on this aspect from the relevant witnesses. I am of the opinion that no mass can be culled out from out of vacuum. 5) Be that as it may, I am of the opinion that the question of application of Section 42(2) of the Act does not arise in this case. Section 42 of the Act reads as follows: “42.Power of entry, search, seizure and arrest without warrant or authorisation: (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government including para- military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a person, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and (d) detain and search, and. if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act : Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.” Reading of the above provision discloses that it comes into operation only in case of entry, search, seizure and arrest in any “building, conveyance or enclosed place” where contraband is or evidence of commission of an offence in relation to such contraband is or evidence of holding any illegally acquired property liable for seizure is located. In a given case like the present one where Ganja plants were raised in agricultural land which neither a building nor a conveyance nor enclosed place, the rigor under Section 42(2) of the Act has no application. Rajender Singh (2 supra) of the Supreme Court has no application herein since it is a case where Opium was stored in a shed used for storing fodder in the farmhouse. I n Dondusa Namasa Baddi (1 supra) of the Supreme Court there is no indication that it was a case of search and seizure of contraband in a place other than a building or conveyance or enclosed place. Though in Meghavath Kishan (3 supra) and Menkane Rangaiah (4 supra) this Court invoked Section 42(2) of the Act, there is no principle as such laid therein to the effect that Section 42(2) of the Act is applicable to cases of contraband located not only in building, conveyance or enclosed place but also to all the other places like open places or agricultural fields. This Court in the above two matters applied Section 42(2) of the Act without reference to language employed in Section 42 of the Act and contrary thereto. With due respect, I am unable to apply those decisions herein which are contrary to the language contained in Section 42 of the Act. 6. It may not be out of place to mention that Section 43 of the Act is an exception to Section 42 of the Act. Section 43 of the Act deals with detention, search and seizure in a public place. Explanation to Section 43 defines public place for the purpose of the said provision as including any public conveyance, hotel, shop or other place intended for use by or accessible to the public. In such a case relating to raid on public place, I am of the opinion that the rigor under Section 42(2) of the Act cannot be made applicable. On a combined reading of Sections 42 and 43, it follows that requirements of reducing information in writing and sending the same to the official superior, are to be complied with in cases where the offence under the Act was committed or detected in a building, conveyance or enclosed place other than a ‘public place’ enumerated in Explanation to Section 43. In that view of the matter, I am of the opinion that finding of guilt recorded by the lower Court is not in any way vitiated and that there are no grounds in this appeal to question the same. 7. In the result, the Criminal Appeal is dismissed. ______________________________ JUSTICE SAMUDRALA GOVINDARAJULU Dt:05.09.2011 Note: L.R. copy to be marked B/o.ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2509 of 2004 Dt:05.09.2011 ysk [1] 2011 (1) ALD (Crl.) 285 (SC) [2] 2011(8) SCALE 434 [3] 2009(1) ALT (Crl.) 264 [4] 2006 (1) ALT (Crl.) 32 (A.P.)