IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE THIRD DAY OF NOVEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Appeal No.304 of 2008 Between: Katla Sammi Reddy and 2 others .. Appellants AND The State represented by Public Prosecutor, High Court of Andhra Pradesh, Hyderabad .. Respondent JUDGMENT: The Criminal Appeal is directed against the conviction and sentences imposed on the accused 1 to 3 in S.C.No.34 of 2007 on the file of I Additional Sessions Judge, Karimnagar, by the judgment dated 10-03-2008. The Sub-Inspector of Police, Saidapur Police Station, filed the final report in Crime No.67 of 2007 of Huzurabad police station, alleging that on 23-04-2007, the Sub-Inspector of Police, Huzurabad police station lodged a complaint stating that at about 8.00 A.M. on that day, while conducting vehicle checking at Parkal X-road, Huzurabad, an auto AP-1-T-4925 and a Hero Honda CD 100 SS KA- 05-Q-4382 were coming from Parkal side. The drivers of the auto and the motorcycle stopped the vehicles on seeing the police and ran away. The police party apprehended the 1st accused present at the auto and on enquiry, the 1st accused disclosed a plastic gunny bag in the auto to be containing wet ganja, which the accused 1 to 3 were transporting. On the requisition of the Sub-Inspector of Police, Saidapur, the Tahsildar, Huzurabad, reached the scene and in the presence of Kondapaka Srinivas and Mohammad Massod, independent mediators, the Sub-Inspector of Police, Saidapur, recorded the confessional statement of the 1st accused and seized the plastic gunny bag containing ganja weighing 30.6 Kgs. as well as two vehicles. The confession and recovery Panchanama, the accused and the property were handed over at the police station to the Head Constable of Huzurabad police station along with the complaint. After registration of the crime, the Sub-Inspector of Police, Saidapur, took up further investigation and examined the witnesses and recorded their statements. The 1st accused was sent to judicial custody, while 2nd and 3rd accused surrendered before the police after obtaining anticipatory bail from the High Court. The Chemical Examiner opined the sample of ganja forwarded to him to be ganja and it was thus established that 1st accused and 3rd accused, father and son and the 2nd accused purchased ganja at a rate of Rs.20/- per KG and were transporting the same when the 1st accused was caught and therefore, an offence under Section 8 (c) read with Section 20 (b) (i) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”) has been committed by the accused 1 to 3 for which they were charge sheeted. The Court, on taking cognizance, furnished copies of documents to the accused on their appearance and framed a charge under Section 8 (c) read with Section 20 (b) (i) of NDPS Act to which the accused pleaded not guilty. After examining PWs.1 to 7 and marking Exs.P.1 to P.15 and M.Os.1 to 4 during trial on behalf of the prosecution, the Court examined the accused under Section 313 of the Code of Criminal Procedure and they denied all the incriminating circumstances appearing in the evidence against them. The accused produced no defence evidence. After hearing the learned Additional Public Prosecutor and the learned defence counsel, the trial Court rendered the impugned judgment referring to the evidence on record in detail and observed that Ex.P.9-Panchanama was also signed by PWs.1 and 2, the independent mediators, along with PW.3-Mandal Revenue Officer and PW.6-the Sub-Inspector of Police, though the mediators turned hostile during evidence. Though the scribe was also not examined, the trial Court did not find much in the statement of PW.3 about a constable drafting the Panchanama on his narration and the claim of PW.6 that the Panchanama was drafted by his writer on his dictation. The trial Court observed that the hostility of Panch witnesses in such cases has become normal and referring to Laxman Goud v. State of A.P. (2002 (2) ALD (Crl.) 539), the trial Court opined that a conviction can be sustained even when the Panch witnesses turned hostile, if their signatures are admitted and the seizure is proved. When the 1st accused was probablised to be in possession of the contraband and the other accused were shown to have escaped from the scene, the trial Court refused to place much reliance on the absence of proof of the ownership of the auto and the motorcycle and further opined that if the accused 2 and 3 were not concerned with the crime, there was no need to surrender before the police. The Panchanama was considered to have proved the involvement of the 2nd and 3rd accused in the crime. Any delay in sending the samples to the Chemical Examiner through the Sub. Divisional Police Officer was also considered to be absent and the prescribed procedure was found to have been followed. The contention about the non-compliance with the mandatory provisions of Section 57 of the statute was not accepted relying on Sajan Abraham v. State of Kerala (2001 (6) SCC 692), where in the Apex Court held the communication to the superior officers to be not necessarily in the form of a report, but can be by way of a substantial information. The trial Court accepted the evidence of PW.4 about forwarding the First Information Report to superior officers also and Ex.P.12-letter from the Sub-Inspector of police to the Sub-Divisional Police Officer and Ex.P.15 instructing PW.6 to take up the investigation were also referred to as showing the knowledge of higher officials about the seizure of the contraband and arrest of the 1st accused. The trial Court had, therefore, no hesitation to conclude that the guilt of the accused 1 to 3 was proved and after hearing on the question of sentence, imposed a sentence of six months Rigorous Imprisonment and a fine of Rs.5,000/- on the 1st accused and sentences of Rigorous Imprisonment for one year each and a fine of Rs.5,000/- each on accused 2 and 3. Default sentences were also imposed in the event of non-payment of fine and M.Os.1 to 4 were directed to be destroyed, while set off was directed to be given under Section 428 of the Code of Criminal Procedure. The accused 1 to 3 challenged the same in this appeal alleging any reliable evidence to be absent and the evidence to be not satisfying the ingredients of the charged offences. The hostility of PWs.1 and 2 was claimed to be fatal apart from the discrepancies in the evidence of other witnesses and non-compliance with the mandatory provisions of the statute was also claimed to be material. The prosecution case was contended to be doubtful in view of the discrepancy about the receipt of requisition by the witnesses and the commencement of the vehicle checking. In any view, the accused 2 and 3 were not in possession of ganja and no conviction could have been imposed on them. The accused, therefore, desired the conviction and sentences to be reversed. Sri A. Prabhakar Rao, learned counsel for the appellants and Sri Rudresh Deshpande, learned counsel representing the learned Public Prosecutor for the respondents are heard. The point for consideration is whether the guilt of the accused 1 to 3 for offences punishable under Section 8 (c) read with Section 20 (b) (i) of NDPS Act has been proved beyond reasonable doubt and if so, what should be the reasonable sentences that the accused should suffer? The earliest version in the First Information Report about the events leading to the registration of crime, reached the concerned Magistrate on the same day as seen from Ex.P.1 and the request of the Sub-Inspector of Police to the Court along with the requisition from the Sub-Divisional Police Officer to the Chemical Examiner on 6-5-2007 cannot be considered to have been vitiated in any manner as rightly opined by the trial Court, including by any delay. The information to the higher officials from the Sub-Inspector of Police as required by the mandatory provisions of NDPS Act alone would have resulted in the Sub-Inspector of Police directing the Sub-Inspector of Police, Saidapur to take up investigation under Ex.P.15 or forwarding of the samples for Chemical Examination by the Sub-Divisional Police Officer to the Chemical Examiner. As opined by the trial Court, any non-compliance with Section 57 of the statute is invisible from the evidence, more so, in view of the statement on oath by PW.7 about sending intimation to the higher officials about the arrest and remand of the 1st accused. No period of limitation has been prescribed by the statute for such intimation with any explicable delay not thus being fatal to the prosecution case and there is no prescribed format in which such intimation has to be given as held by the Apex Court, which precedent was rightly followed by the trial Court. The analysis report of the Chemical Examiner had proved the identity of the substance seized under the Panchanama and the defence version did not suggest during the cross-examination any motive or reason for the official witnesses to falsely implicate any of the accused. It is true that both the Panchas for Ex.P.9-Panchanama turned hostile having admitted only their signatures on the document, but not their presence at the time of seizure and arrest or their being witnesses to the sequence of events. However, there is nothing on record to show any vitiating circumstances under which the signatures of PWs.1 and 2 found place in Ex.P.9 and the evidence of official witnesses, who are interested in the prosecution only in the discharge of their official duties, about the presence of these two witnesses at the time of arrest and seizure needs to be preferred under the circumstances. The only discrepancy of some significance relied on by the learned counsel for the appellants is as to whether Ex.P.9 was drafted on the narration of the Tahsildar by a police constable as stated by PW.3 or was scribed by the writer of the police station to the dictation of PW.6. The handwriting of Ex.P.9 being that of a police constable is thus not disputed with the station writer also belonging to the same status, while the dictation of PW.6 or narration of PW.3 might also have been, under the circumstances, simultaneous and mutually assisting about the details. The arrest of the 1st accused and seizure of the properties were not pre-designed but happened by a chance during a routine vehicle check up by the police at the relevant time and the consistent evidence of the official witnesses-PWs.3 to 7 was rightly accepted by the trial Court and there is no need to replicate further minor details herein. Insofar as the 1st accused, who was arrested and from whom the contraband was seized, is concerned, there is no scope for giving any benefit of reasonable doubt, as the impugned judgment explained the insignificance of the aspects relied on by the defence in detail. However, when it came to the involvement of the 2nd and 3rd accused in the alleged offences, the only link between them and the offences as per the evidence on record seems to be the alleged confessional statement of 1st accused before the Tahsildar, Sub- Inspector of Police and PWs.1 and 2 incorporated in Ex.P.9. While admitting Ex.P.9-Panchanama into evidence that portion of the Panchanama containing the alleged statement of the 1st accused, was not admitted and even assuming that such a statement also can be referred to in considering the guilt of the 2nd and 3rd accused, it is well settled that though it is not illegal to act upon the uncorroborated evidence of an accomplice, it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act on the evidence of accomplice unless it is corroborated in material aspects so as to implicate the other accused. If Ex.P.9 were to be kept out of the consideration, there is not an iota of evidence against the 2nd and 3rd accused and the trial Court appeared to have been influenced by the surrender of the 2nd and 3rd accused before the police after obtaining anticipatory bail from the High Court as clinchingly proving their involvement in the crime. The said sequence of events may not suggest any complicity in the crime or an admission of guilt by the 2nd and 3rd accused, as the 3rd accused is none other than the son of the 1st accused and the 2nd accused also was alleged to be a person known to them and the information about the manner in which Ex.P.9- Panchanama was drafted could have been conveyed to the 2nd and 3rd accused by the 1st accused himself so as to alert them to defend themselves against any possible prosecution. Suspicion, however strong it may be, cannot replace the necessity of proof beyond reasonable doubt and the evidence of PWs.3 to 7 had absolutely no other reference to the involvement of the 2nd and 3rd accused except to Ex.P.9 and the subsequent surrender of accused 2 and 3. Accused 2 and 3, therefore, deserve to be acquitted. They were stated to have paid the fine imposed on them by the impugned judgment to the refund of which they will be entitled. Coming to the 1st accused, he was also stated to have paid the fine and he pleaded before the trial Court that he was aged 80 years and even the prosecution specified him to be aged 65 years by the time of the case in 2007. No past criminal record had been alleged or proved against the 1st accused except his own statements said to have been made under Ex.P.9 about dealing in ganja. Apart from his being a first offender, his age also may have to be taken as an extenuating circumstance for considering reduction of the sentence imposed, more so, in the light of the physical and mental suffering, which he must have undergone since his arrest till now due to the sword of the criminal proceedings hanging over his head all along. Striking a balance between the need for an effective sentence of imprisonment and the circumstances of the 1st accused, the period of imprisonment can be reduced to a period of three months, while permitting set off of any detention or imprisonment already undergone by him. Accordingly, the judgment in S.C.No.34 of 2007 on the file of I Additional Sessions Judge, Karimnagar, dated 10-03-2008 is set aside in respect of 2nd and 3rd accused and the 2nd and 3rd accused are found not guilty of an offence punishable under Sections 8 (c) read with Section 20 (b) (i) of NDPS Act, 1985 and accordingly, they are acquitted under Section 235 (1) of the Code of Criminal Procedure. Any fine amount paid by the accused 2 and 3 shall be refunded to them. The conviction of the 1st accused for an offence punishable under Section 8 (c) read with Section 20 (b) (i) of NDPS Act and the sentence of fine of Rs.5,000/- for the same are confirmed, while the sentence of imprisonment imposed is reduced to a period of three (3) months from six (6) months and the period of detention or imprisonment already undergone, if any, shall be set off from such sentence under Section 428 of the Code of Criminal Procedure. The Criminal Appeal is ordered accordingly. _____________________ G. BHAVANI PRASAD, J Date: 03-11-2011 Ksn