THE HONOURABLE SRI JUSTICE B.N. RAO NALLA CRIMINAL APPEAL No.1000 OF 2004 JUDGMENT: The appellants, who are A-1 and A-2 in S.C. No.32 of 2001 on the file of the learned I Additional Sessions Judge, Guntur, were convicted and sentenced to suffer rigorous imprisonment for a period of six months each and to pay a fine of Rs.5,000/- each and in default of payment of fine to suffer simple imprisonment for six months each for the offence under Section 8(c) read with Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”) by the said Court by its judgment dated 11-05-2004 and assailing the said judgment and conviction and sentence, they preferred this appeal, inter alia, on the following grounds: a) that the trial Court convicted them though there is no reliable evidence on record against them; b) that the trial Court ought to have seen that the contraband was not seized from the appellants and that the police had failed to follow the mandatory provisions under Sections 42, 50 and 57 of the NDPS Act; c) that the trial Court ought to have seen that the ganja alleged to have been seized from the accused was not sent for analysis and that the sample drawn was not fit for analysis as it was of small quantity; d) that the trial Court ought to have seen that there were contradictions in the evidence of the prosecution witnesses and as such the same could not have been a basis for their conviction under the provisions of the NDPS Act; e) that the trial Court erred in not observing that seizure of contraband from the appellants was not in accordance with law and that the same vitiates the trial. 2. The facts of the case, in brief, are that the appellants are residents of Ramireddithota of Guntur. On 06-05-2001 at about 9-00 pm, on information, PW.2 – the Inspector of Police along with his staff conducted a surprise check at Ramireddithota and on seeing the police party, appellants tried to sulk away from there, however they were caught, their identity was ascertained and on interrogation they confessed to the crime. Two packets, each weighing 50 grams, was seized from each of appellants under Ex.P-1, they were arrested and sent for remand on the following day and the sample raised from the contraband was sent to Regional Prohibition and Excise Laboratory, Guntur for analysis and report. LW.3 - Y.T. Naidu, Sub Inspector of Police, Kothapet Law & Order Police Station, as per the instructions of PW.2 - Inspector of Police had registered a case in Crime No.106 of 2001 under Section 8(c) read with 20(b)(i) of the NDPS Act. Ex.P-5 analysis report was to the effect that the sample was ganja. Thereupon, charge sheet was laid in to the Court against the appellants for the offence under Section 8(c) read with 20(b)(i) of the NDPS Act and on their not pleading guilty to the charges, they were put on trial for the same. 3. In support of its case, the prosecution has got examined PWs.1 and 2 and got marked Exs.P-1 to P-5 apart from MOs.1 and 2 on its behalf. Whereas, no witnesses were examined and no documents were marked on behalf of the appellants. 4. The trail Court, after taking the evidence adduced by the prosecution and other material on record into consideration, found the appellants guilty of the offence under Section 8(c) read with 20(b)(i) of the NDPS Act and accordingly convicted and sentenced them as has already been stated supra. Aggrieved by the same, appellants preferred this appeal. 5. The learned counsel for the appellants has raised the selfsame grounds incorporated in the grounds of appeal and in addition thereto it is contended that PW.1, who acted as one of the mediators to Ex.P-1 seizure panchanama, is a stock witness and he has admitted in his cross-examination that he had attested not less than 50 – 60 mediators’ reports in cases pertaining to Kothapet Police Station. Further, as per Ex.P-1, two packets of the contraband was seized from the appellants and it is not the case of the prosecution that the police has seized two sealed packets from appellant No.1 and two unsealed packets from appellant No.2, therefore the evidence of PW.1 is unreliable and untrustworthy. 6. So far as the evidence of PW.2 – Inspector of police, who is the investigating officer, is concerned, it is contended that PW.2 himself has admitted that he is not the investigating officer of the case and that he had only laid the charge sheet into the Court after receiving Ex.P-5 analyst report from the Prohibition and Excise Laboratory, Guntur. Further, LW.3, who is the Station House Officer of the Police Station concerned and registered the crime, was not examined. In the circumstances, it is not known as to who has, in fact, investigated the case. Therefore, it is contended that the evidence of PW.2 is of no significance to the case of the prosecution. 7. It is further contended that there is nothing in the evidence of PW.2 as to compliance of the provisions under Sections 42, 50 and 57 of the NDPS Act, which require an Investigating Officer to record the information in the “G.D.” and also inform the same to his immediate superior officers and that when an accused is a woman, woman police officer should conduct a personal search and the accused should be informed of being produced before any Gazetted Officer for personal search, as such, the trial is vitiated since the said procedure is not followed. It is to be found in the evidence of PW.2 that he has entered the information received by him in the G.D. and informed about the information to his superior officers, but he failed to produce the said G.D. and the information that was sent to his superior officers before the Court. Moreover, PW.2 has categorically admitted that he was not the investigating officer of the case and he has filed the charge sheet only after receipt of Ex.P-5 analyst report. 8. Lastly, it is contended that since PW.1 is a stock witness having admitted to have been attested 50 – 60 mediators’ reports pertaining to the police station concerned and PW.2 being not the investigating officer of the case, their evidence cannot prove the case of the prosecution, and therefore, it is contended that the trial Court committed an error in not taking the said facts into consideration and erroneously convicted the appellants, as such, the impugned judgment and conviction and sentence of the appellants is liable to be set aside. He also relied on a decision of the Honourable Apex Court in KARNAIL SINGH v. STATE OF RAJASTHAN[1] and the decisions of this Court in VARADAPUREDDI SIMMANNA v. STATE[2] and PENTAPATI VENKATA SATYANARAYANA MURTHY v. STATE[3] in support of his contention that the prosecution has violated the procedure prescribed by the provisions of the Act. 9. Per contra, the learned Public Prosecutor supported the impugned judgment of conviction and sentence of the appellants stating that the trial Court has observed that evidence of PWs.1 and 2 is corroborated with each other and proved the case of the prosecution. He further submits that it is in the evidence of PW.1 that when PW.2 had informed both the appellants that they could be produced before a Mandal Revenue Officer for search, they replied negatively. However, once a witness is stated to be a stock witness, his evidence stated to be and proved to be a stock witness, his evidence bound to lose its sanctity. Moreover, the question of corroboration does not arise as PW.2 himself has denied to be the investigating officer of the case. 10. I have given my earnest consideration to the respective submissions made by the learned counsel on either side, perused the impugned judgment and other material made available on record. 11. Now the question that arises for consideration is whether there are any grounds for allowing this appeal ? 12. The main question that involves in this appeal is whether the evidence of PWs.1 and 2, basing on whose evidence the trial Court has convicted the appellants, can be taken in to consideration in support of the case of the prosecution. 13. Coming to the evidence of PW.1, it is admitted by him in his cross-examination itself that he has attested about 50 – 60 mediator’s reports and the same establishes that he is a stock witness, and therefore, no credence can be given to his evidence and the same cannot be taken into consideration in support of the case of the prosecution. Further, one M. Suresh, who was stated to be another mediator along with PW.1 to Ex.P-1 mediators’ report, was also not examined to speak about search, seizure, arrest and to prove the truthfulness of Ex.P-1 mediators report etc. Apart from PW.1, except PW.2, who is stated to be the investigating officer and an official and interested witness, no other witness was examined on behalf of the prosecution. Thus, no independent witness is examined in support of the prosecution case and the same is fatal to the case of the prosecution. 14. So far as the evidence of PW.2, who was the Inspector of Police of the police station concerned at the relevant time, is concerned, apart from that he is an official and interested witness of the case, he himself has admitted in his cross-examination that he has not investigated the case and he has only filed the charge sheet in the Court after receipt of Ex.P-5 analyst report. Hence, his evidence is not of any help to the prosecution. Further, LW.3 – the Station House Officer of the police station concerned, who registered the case was also not examined to say as to who investigated the case. Thus, it is not known as to who investigated the case and these lacunae are fatal to the case of the prosecution. 15. Further, there is also nothing on record to show that the provisions under Sections 42, 50 and 57 of the NDPS Act were followed which require an Investigating Officer to record the information as to search, seizure and arrest of the accused and also to inform about the same to his immediate superior officers and that when an accused is a woman, woman police officer should conduct personal search and the accused should be informed of being produced before any other Gazetted Officer for personal search though the evidence of PWs.1 and 2 shows that when PW.2 informed the appellants that he would get the Mandal Revenue Officer for their search in the presence of the mediators, they replied negatively and he has entered the information received by him in the G.D. and informed the same to his superior officers, the said G.D. is not produced before the Court and PW.2 is not the investigating officer of the case, as such, no weight can be given to his evidence and as rightly pointed out by the learned counsel for the appellants, the law laid down in the decisions referred supra is not followed and thus the prescribed procedure was not complied with, and therefore, the trial is vitiated. 16. In the circumstances, it can be said that the impugned judgment is perverse, suffers from infirmities and irregularities, as such, the conviction and sentence of both the appellants is erroneous, therefore the impugned judgment and conviction and sentence are liable to be set aside allowing the appeal. 17. In the result, the Criminal Appeal is allowed and the impugned judgment in S.C. No.32 of 2001 dated 11-05-2004 passed by the learned I Additional Sessions Judge, Guntur and conviction and sentence of the appellants for the offence under Section 8(c) read with Section 20(b)(i) of the NDPS Act are set aside and accordingly they are acquitted of the same. Both the appellants shall be set at liberty forthwith if they are not required in any other case. __________________ B.N. RAO NALLA, J Date:11-04-2011. PV [1] (2000) 7 SCC 632 [2] 1999(1) ALT (Crl.) 518 (A.P.) [3] 1999(1) ALT (Crl.) 502 (A.P.)