HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2424 OF 2004 Dated 14-03-2011 Between: Nalli Ramu and another ……..Appellants And: State of A.P., rep. by PP., High Court of A.P. ………Respondent HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2424 OF 2004 JUDGMENT: This appeal arises out of the conviction and sentence passed by the I Additional Sessions Judge, Guntur in S.C No.40 of 2001 dated 05.11.2004. The appellants herein were prosecuted for the offence under Sections 323 and 324 IPC and Section 8(c ) and read with 20(b)(i) of N.D.P.S Act (for short, the Act) alleging that on 11.4.2001 at about 7.30 p.m while P.Ws.1 and 2 along with another were sitting at Gatchibavi centre, Sattenapalli, A.1 went there and asked the luna of P.W.2 but he refused to give the same. Then P.W.1 recommended and P.W.2 gave his luna to A.1. A.1 took the luna and went away. P.W.2 waited for some time for his luna and A.1 did not return and then P.W.2 got angry against P.W.1 and went away to his house. Then P.W.1 left for A.1, while searching for A.1, he learnt that A.1 was present at Railway station centre, while P.W.1 was proceeding towards Railway station for A.1, on enroute at Dr. Ranga Rao’s hospital, Sattenapalli the accused both were coming on moped from Railway station, Sattenepalli at about 00.30 hours, P.W.1 stopped them and expressed anger A.1 picked up quarrel with P.W.1. A.1 beat with his hand on the face of P.W.1, A.2 fisted on mouth, later A.1 picked up a stick and beat P.W.1 and caused injury and P.W.1 also beat A.1. At the instance of P.W.1, a case was registered in Crime No.72 of 2001 of Sattenapalli Town P.S for offence under Section 324 read with 34 IPC on 12.4.2001 at 0.40 hours and took up investigation and later P.W.1 was sent to the hospital for treatment and P.W.3 has issued wound certificate and opined that the injury is simple in nature. On 13.4.2001 at about 10.30 a.m, S.I. of police has received the credible information about the accused and their possession of ganja. He immediately tried to inform the same to his superiors but none were available and thereby he made a G.D entry and left police station along with his staff, and enroute he secured the presence of the mediators Mallikharjuna Rao and Sanjeeva Rao and rushed to the Railway Station, Sattenapalli and arrested both the accused on Western side of the Railway Platform in the presence of the said mediators and seized two ganja packets from their possession under the cover of mediator’s nama and took samples from the said seized ganja. The learned Sessions Judge has framed the charges under Section 323 IPC against A.1 and A.2 and under Section 324 IPC against the A.1 and under Section 8(c ) read with 29(b)(i) of the Act against A.1 and A.2 and both of them pleaded not guilty for the said charges. The prosecution in order to establish the said charges, examined 4 witnesses on their behalf and got marked Exs.P.1 to P.11 and M.Os.1 to 4. No defence witnesses were examined by the accused. The learned Sessions Judge by taking into consideration of both oral and documentary evidence found A-1 and A.2 guilty for the office under Section 8(c ) read with 20(b)(i) of the Act and convicted and sentenced to undergo rigorous imprisonment for a period of 1 year and to pay a fine of Rs.10,000/- and they were acquitted for the charges under Sections 323 and 324 IPC. Aggrieved by the said conviction and sentence, the present appeal is filed. Now the point that arises for consideration is whether the prosecution could able to establish the offence under Section 8(c ) read with 20(b)(i) of the Act beyond reasonable doubt? The learned counsel for the appellants has pleaded that except the evidence of P.W.4, the investigating officer, there is no evidence to establish the offence under Section 8(c ) and read with 20(b)(i) of the Act as the mediators have turned hostile to the prosecution and the investigating officer has not complied with Section 42 or 50 of the Act which are mandatory, as such the accused are entitled to be acquitted. On behalf of the Public Prosecutor, it is argued that even though the mediator has turned hostile, the evidence of the investigating officer can be relied upon and he has made G.D entry with regard to the information received by him as the superior officer was not available before proceeding to the Railway station after getting the information and he has complied with Section 50 of the Act by informing the accused about his right to presence of a Magistrate or Gazetted officer for which the accused stated that there is no necessity to take them to the Gazetted officer or Magistrate and they can be searched in the presence of the mediators by the investigating officer. According to the prosecution on 13.4.2001 at about 10.30 a.m, S.I. of police has received the credible information about the accused and their possession of ganja. He immediately tried to inform the same to his superiors but none were available and thereby he made a G.D entry and left police station along with his staff, and enroute he secured the presence of the mediators Mallikharjuna Rao and Sanjeeva Rao and rushed to the Railway Station, Sattenapalli and arrested both the accused on Western side of the Railway Platform in the presence of the said mediators and seized two ganja packets from their possession under the cover of mediator’s nama and taken two samples. P.W.2 is the mediator has turned hostile to the prosecution and he has not supported the version of the prosecution. According to him, S.I of Police has obtained his signature on the blank white paper. The Investigating Officer P.W.4, on the complaint of P.W.1 has registered the case in Crime No.71 of 2001 under Section 324 read with Section 34 IPC and issued F.I.R and during the course of the investigation of such crime, he received reliable information about the presence of the accused in the Sattenapalli railway station and immediately he took up the investigation and proceeded to the railway station and found the accused on the Western side plot form of Sattenapalli and seized the ganja packets from their possession under the cover of Mahazar and took samples. According to him, he received the information before proceeding to the scene of offence about the possession of Ganja. He wanted to inform the same to the higher officials i.e., the Inspector of Police, Sattenapalli but he was in special duty, then he wanted to inform the Deputy Superintendent of Police, but he was on leave, then he wanted to inform the same to in-charge DSP and he was not available on phone and he was told that he went out. Then when he tried to inform the same to the Magistrate of Sattenapalli, he was told that he went to the Bench and was busy with his work. Then he made a entry about the said information in the G.D and proceeded to the scene of occurrence. Ex.P.4 is the Xerox copy of the said G.D entry which is available in his C.D file. The original was sent to the S.P as usual as being sent on every month. When A.1 and A.2 were informed about their right to be search in the presence of Gazetted officer or Magistrate, they stated that the search can be done by him. Accordingly he searched both of them and seized the ganja packets in the presence of the above said mediators. In the cross- examination, he denied the suggestion that his trying to confirm the Inspector of Police, DSP, Magistrate etc., for compliance of Section 42 of the Act false and he created them Ex.P.4 G.D entries for the purpose of this case. According to P.W.4, he has made G.D entry and proceeded to the spot. Therefore, according to P.W.4, he has complied with Section 42 of the Act but as admitted by him in his chief- examination itself that Ex.P.4 which is Xerox copy of the C.D file was sent to the S.P. as usual as being sent on every month. Therefore, immediately after making of G.D entry he has not sent the same to the Superior officer. With regard to sending of the information, to his superior officers even if they are not available nothing prevented P.W.4 in sending the required intimation to the higher officials in writing immediately after receiving the information and no explanation was forthcoming in that regard. Therefore, P.W.4 has not complied with Section 42 of the Act. With regard to compliance of Section 50 of the Act, P.W.4 has stated that he has informed the accused about their right to be searched in the presence of Gazetted officer or Magistrate but both the accused stated to him that they do not want any other Gazetted officer or Magistrate and the search can be done by him. But the said fact was not mentioned in the mediators nama and no explanation is forthcoming as to why he has not mentioned the same in the mediators nama which was drafted at the time of seizure of the material from the possession of the accused. More over it is not the case of searching A.1 and A.2 and finding the N.D.P.S substance in their possession, he got the prior information about the possession of ganja in possession of the accused. Therefore, for non compliance of Sections 42 and 50 of the Act. The accused are entitled for the benefit of doubt. Hence, I hold that the prosecution has failed to establish the offence under Section 8(c ) and read with 20(b)(i) of the Act beyond reasonable doubt. In the result, the criminal appeal is allowed and the conviction and sentence passed by the I Additional Sessions Judge, Guntur in S.C No.40 of 2001 dated 05.11.2004 is hereby set aside and the accused are acquitted. ______________________ P.DURGA PRASAD,J. Date:14.03.2011. Gk. HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2424 OF 2004 Dated 14.03.2011 Gk.