IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY FOURTH DAY OF MARCH TWO THOUSAND AND ELEVEN :PRESENT: THE HON'BLE SRI JUSTICE B. SESHASAYANA REDDY CRIMINAL APPEAL No.321 of 2005 Between: Pattan Alla Bakshi ..... APPELLANT AND The State of A.P. rep by Public Prosecutor ..... RESPONDENT ORDER: This Criminal Appeal is directed against the judgment dated 02-03-2005 passed in S.C.No.280 of 2000 on the file of the Special Sessions Judge for N.D.P.S. Act Cases, Prakasam District, Ongole, whereby and whereunder the learned Special Judge found accused Pattan Alla Bakshi guilty for the offence under Section 8 (c) r/w. Section 20 (b) (i) of Narcotic Drugs and Psychotropic Substances Act, 1985, (for short, ‘the Act’) and convicted him accordingly and sentenced him to suffer rigorous imprisonment for one year and to pay a fine of Rs.1,000/-, in default, to suffer simple imprisonment for a period of one month. 2. The prosecution case in brief is: PW-3-M. Sudhakar was Sub-Inspector of Police, Prohibition and Excise Station, Chirala and he was in-charge of Prohibition and Excise Station, Parchuru. On 29-01-2000 he received information with regard to storing of Ganja in the house of the accused. He along with his staff and panchas namely PW-1-P.Venkata Ramaiah and LW-2-Addanki Paparao proceeded to J.Pangalur village for search of the house owned by the appellant/accused. He served such proceedings on the appellant/accused and searched the house in the presence of PW-1-P. Venkata Ramaiah and LW-2-Addanki Paparao and found polythene bag in the corner of the house. He questioned the accused as to the contents of the polythene bag. Thereupon the accused informed the contents of polythene bag as Ganja. He informed the accused of his option to have his personal search done in the presence of a Gazetted officer or a magistrate. The accused stated to have replied in negative. PW-3 opened the contents of the bag in the presence of mediators and found Ganja in the form of seeds, leaves and flowers. He got the contents of the bag weighed. The contents approximately weighed 1½ Kgs. He collected 100 grams of Ganja from the bag for the purpose of analysis and sealed the contraband in sample pockets affixing the identity slips containing the signatures of mediators and the appellant/ accused. PW-3 also signed on the identity slips. A mediatornama came to be drafted, which has been exhibited as Ex.P-1. After informing grounds of arrest, he arrested the accused under the cover of Ex.P-1 panchanama and seized M.Os.1 and 2. He registered a case in Crime No.8 of 1999-2000 basing on Ex.P-1 panchanama under Section 8 (c) r/w.20 (b)(i) of the Act. Ex.P-2 is First Information Report issued by him. He sent the sample of Ganja collected by him at the time of seizure to Government Regional Laboratory, Guntur for analysis. LW-9–P. Venkateswarlu, Prohibition and Excise S.I., Parchuru, received the analysis report from the Government Regional Laboratory, Guntur, wherein the sample is stated to be Ganja. Ex.P-3 is the analyst report. After completing investigation LW-9 – P. Venkateswarlu filed charge sheet before the designated Court for trial of offences under provision of the N.D.P.S. Act. 3. The learned Special Judge took the case on file as S.C.No.280 of 2000. On appearance of accused and on furnishing copies of documents to him, the learned Special Judge framed a charge for the offence under Section 8(c) r/w.20(b)(i) of the Act, explained the same to the appellant/accused, for which the appellant/accused pleaded not guilty and claimed to be tried. 4. To bring home the guilt of the accused for the offence with which he stood charged, the prosecution examined three witnesses PW-1 to 3 and got marked three documents as Exs.P-1 to P-3 and M.Os.1 and 2. 5. The learned Special Judge on considering the evidence brought on record and on hearing the prosecution found the accused guilty for the offence under Section 8 (c) r/w.20 (b)(i) of the Act and convicted him accordingly and sentenced him to suffer rigorous imprisonment for one year and to pay a fine of Rs.1,000/-, in default, to suffer simple imprisonment for one month, by judgment dated 02-03-2005. Hence, this appeal. 6. Heard learned counsel appearing for the appellant/ accused and learned Additional Public Prosecutor appearing for respondent-State. 7. Learned counsel appearing for the appellant/ accused submits that accused is a prominent person in J.Pangalur mandal he is also a co-opted member of J. Panguluru mandal Parishat and a false case has been foisted against him by the persons, who are enmical to him. 8. A further submission has made that mandatory provisions under the Act while conducting search and seizure are not followed and the very search is vitiated. He would also contend that PW-3 has not complied sub Section 2 of Section 42 of N.D.P.S. Act. Therefore, the conviction and sentence of the appellant/accused for the offence under Section 8(c) r/w.20 (b)(i) of N.D.P.S. Act can not be sustained. 9. Learned Additional Public Prosecutor submits that PW-1 is an independent witness and he has no reason to speak false against the appellant/accused. The evidence of PW-1 is specific that on search of the house owned by the appellant/accused, 1½ Kgs., of Ganja came to be seized. His evidence is amply corroborates the testimony of PW-3-M. Sudhakar who lead the raiding party. 10. The only question that calls for adjudication in this appeal is: Whether the conviction and sentence of the appellant/accused for the offence under Section 8 (c) r/w.20 (b)(i) of the Act is legal and proper? 11. P O I N T:- PW-1-P. Venkata Ramaiah was the Panchayat Secretary of Divalaravuru in the year 2005. He testifies that Excise Officials surprised the house of appellant/accused and found M.O-1-Ganja bag. His testimony is amply corroborated by PW-3-M. Sudhakar, S.I. of Police, Prohibition and Excise, Cheerala. 12. The evidence of PWs.1 and 3 is cogent and consistent to the fact that the bag containing 1½ Kgs., of Ganja has been found in the premises owned by the appellant/accused. PW-2- Md.Khasim is the Prohibition and Excise Constable, Enforcement. He supported the evidence of PWs.1 and 3. 13. Nothing has been elicited in the cross-examination of PWs-1 to 3 that they have any reason to foist a false case against the appellant/accused. Sample of contraband came to be sent for analyst and the report of the analyst has been marked as Ex.P-2. 14. As per the report, the sample is found to be Ganja and the report came to be marked through PW-3. Nothing is suggested to him disputing the analyst report. It is the contention of the learned counsel for the appellant/accused that PW-3 has not complied the mandatory provisions of the Act, 1985 and much emphasis has been laid on sub Section 2 of Section 42 of the Act, which reads as hereunder: “Wherein 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.” 15. Nothing is suggested to PW-3 that he reduced the information into writing or he conducted the search between sun set and sun rise. Therefore, sub Section 2 of Section 42 of the Act cannot be pressed into service. 16. The evidence brought on record is cogent and consistent to the fact that 1½ Kgs., of Ganja came to be seized from the house in occupation of the appellant/accused. Therefore, the conviction of the accused for the offence under Section 8 (c) r/w.20 (b)(i) of the Act does not warrant interference. 17. It is contended by the learned counsel for the appellant/ accused that the appellant/accused was in jail for 3 weeks as under trial prisoner and for 9 days after pronouncement of judgment of the trial Court and therefore, seeks deduction of sentence of imprisonment imposed on the petitioner to the period already undergone. 18. Having regard to the facts and circumstances of the case, I am inclined to reduce the sentence of imprisonment from one year to six months and accordingly, the sentence imposed on the petitioner/accused for the offence under Section 8 (c) r/w.20 (b)(i) of the Act is reduced from one year to six months while maintaining the fine. But for the reduction of the sentence of imprisonment, the appeal fails and the same is hereby dismissed. 19. The bail bonds furnished by the appellant/accused shall stand cancelled. The appellant/accused is directed to surrender before the Special Sessions Judge for N.D. & P.S. Act-cum- Additional Sessions Judge, Prakasam district, Ongole, to suffer the reduced sentence of imprisonment. _____________________________ B. SESHASAYANA REDDY, J March 24, 2011. PN THE HON'BLE SRI JUSTICE B. SESHASAYANA REDDY CRIMINAL APPEAL No.321 of 2005 March 24, 2011