HON’BLE SRI JUSTICE B.N.RAO NALLA Criminal Appeal No. 558 of 2004 JUDGMENT: A1 to A3 in S.C. No.19 of 2001 on the file of the I Additional Sessions Judge, Guntur, preferred this appeal aggrieved by the judgment of the said court dated 22.3.2004 whereby and whereunder they were found guilty for the offence under Section 8 (c) read with 20 (b) (i) of Narcotic Drugs and Psychotropic and Substances Act,1985 (for short ‘the NDPS Act’) and sentenced to undergo rigorous imprisonment for six months each and also to pay fine of Rs.5,000/- each , in default, simple imprisonment for six months each, for the said offence. 2. The facts in brief are that on 5.1.2001, PW.3-Inspector of Police on reliable information proceeded to Koneru Bazar, Chenchupet, Tenali along with PW.1-PC 3076, PC 2110- U. Ramaiah and PW.2- S.I. of III Town Police Station, Tenali and noticed that on seeing them A1 to A3 tried to escape from there. However, they apprehended them and on interrogation, A1 to A3 revealed their names and on search they found 5 Ganja packets in the shirt pocket of A1, 6 in the pant pocket of A2 and 4 in the pant pocket of A3. That A1 confessed to the crime stating that he along with his brother A2 were purchasing Ganja packets at the rate of Rs.10/- per each packet from Guntur and selling them at Tenali at the rate of Rs.25/- per each packet and that A3 was also doing so. The confessional statements of A1 to A3 were recorded and the said Ganja packets were seized from them. A3 has confessed that he purchased Ganja packets from an unknown person at Railway Station at Vijayawada at the rate of Rs.8/- per each packet and was selling the same at Tenali at the rate of Rs.25/- per each packet and that after informing the grounds of arrest, A1 to A3 were arrested for the offence under Section 8 © read with 20 (b) (i) of the NDPS Act. After drafting police proceedings, no mediators were available. PW.2-S.I. of III Town P.S., Tenali, registered a case in Crime No.2/01 against A1 to A3 for the offence under Section 8(c) read with Section 20(b) (i) of NDPS Act and thereafter the accused were sent for remand. That the seized 3 Ganja samples were sent to the Regional Excise and Prohibition Laboratory, Guntur for analysis and report through Court. Ex.P.5- analysis report dated 29.1.2001 reveals that the contraband was Ganja. 3. That on the accused pleading not guilty to the charge, they were prosecuted for the offence under Section 8 © read with 20(b) (i) of the NDPS Act. 4. That in order to prove its case, the prosecution had examined PWs 1 to 3 and got marked Exs.P1 to P.5 and M.Os 1 to 4 on its behalf. However, no witnesses were examined and no documents were marked on behalf of the accused. 5. The trial court, taking into consideration the evidence of the prosecution witnesses and other material on record, found appellant- A1 to A.3 guilty for the aforesaid offence under Section 8 © b read with 20 (b) (i) of the NDPS Act and accordingly convicted and sentenced them as has already stated in Para No.1 supra. 6. It is the case of the appellant-accused that the trial court erred in convicting A1 to A3 without there being any sufficient evidence. The prosecution witnesses PWs 1 to 3 are official and interested witnesses and no independent witness was examined in support of the prosecution case. That the statutory requirements as enunciated under Sections 42, 50 and 57 of the NDPS Act were not complied with. It is further case of the appellant-accused that there was abnormal delay in sending contraband to the Court as well as to the Public Analyst. It is contended that though it is alleged that the offence took place on 5.1.2001 and the accused were arrested, the contraband was seized from them under Ex.P.1-Police Proceedings and the crime was registered on 5.1.2001, the sample of the contraband was sent to the Court of local magistrate on 17.01.2001 and it in turn forwarded the same to the Chemical Analyst on 24.1.2001. Therefore, it is contended that there is abnormal delay in sending the sample to the Court of local Magistrate on 17.1.2001 though it was alleged to have been seized from A1 to A.3 on the alleged date of offence i.e. 5.1.2001. So far as the securing independent witnesses to act as mediators is concerned, it is in the evidence of PW.2 that independent witnesses should not be secured, therefore, they resorted to Ex.P.1-police proceedings, whereas it is in the evidence of PW.3 that they tried to secure the presence of mediators in the nearby vicinity but none was present. So far as the compliance of the statutory provisions under Section 50 of the NDPS Act is concerned, it is in the cross examination of PW.1 that when A1 to A3 were asked about their willingness to another Gazetted Officer, they did not provide with any other Gazetted Officer. So far as making entry in the G.D. before proceeding to the scene of occurrence is concerned, it is in the cross examination of PW.2 that they made such an entry in the G.D but the same could not be produced before the Court. So far as the requirement of making personal search of the accused is concerned, it is the case of the prosecution as well as the evidence of PWs 1 and 2 that the accused were not subjected to personal search since they themselves had produced the contraband before the Police party from their possession. Lastly, It is the case of the appellant-accused that there was no material on record sufficient to warrant conviction of any of the accused. Therefore, it is contended that the trial court has erred in convicting them and as such the judgement is liable to be set-aside by allowing the appeal. 7. It is the case of the prosecution that PWs 1 to 3 supported the case of the prosecution as there is sufficient corroboration in their evidence. So far as the compliance of the statutory provisions under Sections 42 to 50 of the NDPS Act is concerned, it is settled law that such compliance could be either oral or in writing and as such the Police Party complied with the said provisions since it is the case of the prosecution that when A1 to A3 informed about their willingness to be produced before any Gazette Officer, they answered in negative. It is submitted that after the arrest of the accused and seizure of contraband, PW.3-Investigating Officer informed his immediate superior official-DSP about the same and also sent a copy of Ex.P.1- police proceedings to him. It is also submitted that as per the evidence of PW.2, the first investigating officer, who registered the crime has testified that they resorted to police proceedings under Ex.P.1 having been unable to secure the independent witness. PW.3 also has stated that though they tried, they could not find any mediators in the nearby vicinity. Therefore, it is submitted that it cannot be said that the statutory requirements are not compiled with. So far as the delay in sending contraband through Court to Chemical Analyst is concerned, it is submitted that the same was sent to the Court of local Magistrate on 17.1.2001. Thus there is a gap of 12 days which cannot be said to be inordinate delay as the sample is not such a commodity to deteriorate or change its nature within such a short time. Further in any case, the court has sent the sample to the Analyst on 24.1.2001. Therefore, the said delay of 12 days is not fatal to the case of the prosecution. 8. In the above facts and circumstances and also having regard to the rival contentions, this court is of the view that the prosecution has proved its case beyond reasonable doubt. As such, the findings of the trial court in convicting and sentencing the accused cannot be found fault and the Criminal Appeal is liable to be dismissed. 9. In the result, the Criminal Appeal is dismissed. _______________ B.N.RAO NALLA,J -03-2011 Stp HON’BLE SRI JUSTICE B.N.RAO NALLA Criminal Appeal No. 558 of 2004 -03-2011