THE HON’BLE SRI JUSTICE B.N.RAO NALLA CRIMINAL APPEAL NO. 642 of 2006. JUDGEMENT This appeal is filed against the Judgement dt. 4.4.2006 in N.D.S.C.No. 3 of 2004 on the file of the Special Judge under the N.D.P.S. Act-cum-I Additional Sessions Judge, Adilabad whereby the learned Sessions Judge, convicted the appellant for the offence under Section 8 (c) r/w Section 20(b) (i) of the N.D.P.S. Act, 1985 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 three months. The case of the prosecution, in brief, is that on 12.5.2001 at about 8 p.m. the Excise Officials and M.T.F. Adilabad and their staff proceeded to bus stand area, Adilabad, after securing two panchas for checking the suspected passengers and that they found the accused with a bag and on seeing them, he was trying to escape from the spot and then, on suspicion, he was stopped and on enquiry the accused revealed his name and other particulars and then the Excise Officials informed the accused that they want to search his bag and asked him whether the same has to be searched before the MRO or any other Gazetted Officer, whereupon the accused admitted that he was illegally transporting Ganja in his bag for sale in Maharastra and that he has no objection. Then the Excise Officials searched the bag and found about 8 K.Gs of Ganja therein and the same was seized under cover of panchanama, after drawing two samples as per the procedure for chemical analysis. Thereafter, the Excise Officials registered a case in Cr.No. 60/2001-02 under Section 8 (c) r/w Section 20 (b) of NDPS Act, 1985 and after receipt of analysis report, charged sheet was filed against the accused. To prove the offence, the prosecution examined Pws 1 to 4 and Exs:P.1 to P.5 and M.Os 1 and 2 are marked. The learned I Additional Sessions Judge, Adilabad, after appreciating both oral and documentary evidence brought on record, found the accused guilty of the offence under Section 8 (c) r/w Section 20 (b) (i) of NDPS Act, 1985 and sentenced him, as stated in para No.2 supra. Aggrieved by the said conviction and sentence, the accused filed the present appeal. The learned Counsel for the appellant contends that the contraband was alleged to be seized on 12.5.2001 whereas the sample was sent to the Chemical Examiner on 21.8.2001 i.e. more than three months after the alleged seizure. The prosecution failed to explain as to why the seized contraband was not deposited into Court immediately after it was seized and as to why the sample was not sent to the Chemical Examiner for analysis. In the absence of any explanation for the delay in depositing the contraband into the Court and sending the sample for analysis, the very seizure itself has to be doubted and that the learned Sessions Judge failed to consider this aspect in the impugned judgment. The learned Counsel for the appellant further contends that Pws 1 and 2 in whose presence the contraband was alleged to have been seized under cover of panchanama, did not support the version of the prosecution and they turned hostile and that the learned Sessions Judge also failed to observe that the independent panch witnesses did not support the case of the prosecution and erroneously believed the evidence of Investigating Officers whose evidence is inconsistent and not corroborating with each other. The learned Counsel for the appellant further contends that Pw.3 (CI, Excise Task Force, Adilabad) stated in his evidence that on the date of incident, he along with Pw.4, Lw.4 (D.Srinivas, Excise Inspector) went to Adilabad bus stand along with Pws 1 and 2 and after recovering the contraband, he arrested the accused and brought him to the Excise Station. However, Pw.3 did not say anything as to whether they have received any prior information regarding the illegal transportation of Ganja and in the absence of any such prior information, there is no explanation from Pw.3 as to why they have gone to the bus stand along with Panch witnesses. Further Pw.3 in his chief examination stated that he arrested the accused whereas in his cross-examination he stated that Pw.4 arrested the accused. Further, Pw.4 in his cross- examination clearly stated that he did not receive any prior information regarding illegal transportation of Ganja. This statement of Pw.4 contradicts the evidence of Pw.3 regarding receiving of prior information. The learned Counsel for the appellant further contends that according to the evidence of Pw.3, the contraband was found in a bag whereas according to the evidence of Pw.4, the contraband was found in a suitcase. Thus there is variation between the evidence of Pws 3 and 4 regarding the container of contraband. He further contends that D.Srinivas another Excise CI who also followed Pws 3 and 4 was not examined. In view of the contradictory evidence of Pws 3 and 4 and since the independent witnesses Pws 1 and 2 in whose presence the contraband was seized did not support the case of the prosecution, the learned Counsel for the appellant prays to allow the appeal. However, the learned Public Prosecutor supported the impugned Judgement of the learned Sessions Judge. Heard both sides. I have perused the impugned Judgement and also perused the material on record. As rightly contended by the learned Counsel for the appellant, the alleged offence took place on 12.5.2001 whereas the sample was sent to the Chemical Examiner on 21.8.2001. No explanation was offered by the prosecution as to why the contraband was not deposited into court immediately after it was seized and as to why the sample was not sent for analysis immediately. In the absence of any explanation from the side of the prosecution with regard to the delay in depositing the contraband and sending the sample for analysis, the possibility of implicating the accused by depositing the contraband seized from somewhere cannot be ruled out. The learned Sessions Judge failed to consider this aspect. Further, according to the evidence of Pw.3, he did not receive any prior information regarding illegal transportation of Ganja and Pw.4 received prior information. Pw.4 stated in his cross-examination that he did not receive any prior information regarding the illegal transportation of Ganja. Thus, there is variation between the evidence of Pws 3 and 4 regarding receipt of prior information. Further according to the chief evidence of Pw.3, he arrested the accused whereas he states in his cross-examination that Pw.4 arrested the accused. Thus the evidence of Pw.3 is self-contradictory. As rightly contended by the learned Counsel for the appellant there is variation with regard to the container in which the contraband was found. According to the evidence of Pw.3, the contraband was found in a bag whereas Pw.4 states that the contraband was found in a suitcase. In the absence of any prior information regarding the alleged offence, as to how and why Pws 3 and 4 with other officials along with Pws 1 and 2 went to the Bus stand is not forthcoming. Since the evidence of Pws 3 and 4 is contradicting with each other and since there is delay in depositing the contraband into the court and sending the sample for analysis and since Pws 3 and 4 along with other officials and Pws 1 and 2 went to Adilabad Bus stand without prior intimation regarding the alleged offence, the case of the prosecution can be doubted and the appellant cannot be held liable for the alleged offence. The learned I Additional Sessions Judge, Adilabad failed to appreciate the crucial aspects in the prosecution case and appears to have erroneously convicted and sentenced the appellant. Therefore, the impugned Judgement is liable to be set aside. In the result, the appeal is allowed. The conviction and sentence imposed by the learned Sessions Judge, Adilabad against the appellant in NDSC.No. 3 of 2004 is set aside. The fine amount, if paid, shall be refunded to the appellant. ___________________ B.N.RAO NALLA,J 23.06.2010. krb. THE HON’BLE SRI JUSTICE B.N.RAO NALLA CRIMINAL APPEAL NO. 642 of 2006. Dt. 23.06.2010.