THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.2400 OF 2004 JUDGMENT: The appellant/accused was convicted for the offence under Section 8 (c)/20(b)(ii) of the Narcotic Drugs And Psychotropic Substances Act, 1985 (in short “the Act”) and was sentenced to rigorous imprisonment for one year and fine of Rs.500/- by the Special Judge under the Act, Nizamabad, by judgment dated 05.11.2004 in NDPS Sessions Case No.68 of 2004. Aggrieved by the same, the accused filed this appeal. It is alleged by the prosecution that on 17.05.2004 when the accused was going inside the bus stand carrying two suit cases in both hands and one air bag hanging in his left shoulder, the Inspector of Prohibition and Excise (P.W.2) Nizamabad, apprehended him at bus stand, Nizamabad, in the presence of two mediators and that total amount of 40 Kgs of ganja was seized from his possession from out of two suit cases and one air bag under the cover of Ex.P1 mediators report. When samples collected from those three containers were sent for analysis, the Government chemical examiner for Prohibition and Excise, Nizamabad, gave Ex.P.4 report of Analysis to the effect that the samples were ganja. Plea of the accused is one of total denial and one of not guilty. After trial, the lower Court found him guilty of the charge. It is contended by the appellant’s counsel that the lower Court did not appreciate the evidence on record properly and came to an erroneous conclusion. As pointed out herein, it is the prosecution case that the accused was taken into custody while he was entering into bus stand along with two suit cases and one air bag. P.W.1, who is one of the mediators in Ex.P.1, deposed that the accused was taken into custody by P.W.2 after the accused got down from a bus holding a bag and two suit cases. P.W.2 deposed that the accused was taken into custody when the accused was coming to the bus stand. Both the versions of P.Ws.1 and 2 are irreconcilable. It is doubtful whether the accused was intercepted while getting out of a bus or while entering into the bus stand. Entering into bus stand is totally different from getting down from the bus in the bus stand. It is contended by the appellant’s counsel that as per P.W.1’s evidence, Ex.P.1 panchanama was not prepared at the bus stand. P.W.1 says that the excise officials brought the accused along with the contraband to the Circle Office and there P.W.2 seized the said ganja from the accused in their presence under Ex.P.1 panchanama. But ExP.1 reads as if it was prepared at the bus stand. In my opinion this discrepancy regarding the place where Ex.P.1 was prepared is only a minor discrepancy. There is no legal prohibition for preparing panchanama in the excise station after the accused was apprehended along with the contraband at bus stand. It is contended by the appellant’s counsel that there is no compliance of Sections 42 and 43 of the Act. As per Section 42 (2), when 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. The prosecution filed Exs.P2 and P3 on this aspect. Ex.P.3 is search memo under Section 42 of the Act prepared by P.W.2. It reads that P.W.2 received reliable information about illegal transportation of dry ganja by some persons at APSRTC bus stand, Nizamabad. Therefore, P.W.2 prepared Ex.P.3 memo to the effect that if the suspected persons are not checked immediately, there is every likelihood of disappearance of material evidence and that there is no time to obtain warrants from the Court. It is contended by the Additional Public Prosecutor that there is sufficient compliance of Section 42 (2) of the Act by sending Ex.P.2 letter by P.W.2 to the Sub Divisional Prohibition and Excise Officer, Nizamabad. Ex.P.2 reads that P.W.2 received reliable information about illegal transportation of dry ganja by some persons from Nizamabad bus stand. P.W.2 informed further therein that he was intending to conduct route watch at Nizamabad bus stand from 1.00 p.m. onwards with staff. Time in Ex.P.2 is noted as 11.50 A.M., whereas in Ex.P.3 it is noted as 1.30 P.M. Ex.P.3 could not have been sent along with Ex.P.2, because Ex.P.2 is earlier to Ex.P.3. It is contended by the appellant’s counsel that there is no evidence produced by the prosecution to show that Ex.P2 was despatched to the superior officer and if so by what means and whether it was received by the superior officer to whom it was addressed. There is no evidence in P.W.2’s deposition as to how Ex.P.2 was despatched. At any rate, it is not P.W.2’s evidence that Ex.P.3 was despatched to his immediate superior officer by P.W.2. Therefore, I find that there is non-compliance of Section 42 (2) of the Act in this case. It is further contended by the appellant’s counsel that there is no compliance of Section 54 of the Act inasmuch as neither P.W.1 nor P.W.2 spoke about affixing seals of P.W.2 on two samples each collected by P.W.2 from three containers of ganja. P.Ws.1 and 2 did not at all speak about sealing of the sample packets. In the absence of proof of compliance of the said mandatory requirement, in respect of seals, there is non-compliance of Section 55 of the Act in this case. P.W.2 also did not speak to compliance of Section 57 of the Act by way of sending a special report to his immediate superior about seizure of the contraband and arrest of the accused, much less within the time specified therein. In view of material discrepancy about the point at which the accused was intercepted by P.W.2, whether at the entry point or at the exit point and in view of non-compliance of requirements under Section 42 (2), 55 and 57 of the Act in this case, I am of the opinion that conviction recorded by the lower Court is unsustainable. In the result, the appeal is allowed setting aside the conviction and the sentence passed by the lower Court against the accused/appellant and acquitting him. ___________________________________ JUSTICE SAMUDRALA GOVINDARAJULU 5th August, 2011 bud THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.2400 OF 2004 DATED:05.08.2011