HON’BLE MR JUSTICE R. KANTHA RAO Criminal Appeal NO.373 OF 2009 DATED: 26.08.2011 BETWEEN: Mada Pardhasaradhi and others .. Appellant And Prohibition and Excise Inspector .. Respondent HON’BLE MR JUSTICE R. KANTHA RAO Criminal Appeal No. 373 OF 2009 JUDGMENT: This criminal appeal is filed against the judgment dated 13.03.2009 passed by the Special Judge for NDPS Cases- cum-I Additional District and Sessions Judge, Ongole in S.C.No.21 of 2007. 2. The appellants were tried for the charge under Section 20(b)(ii)(c) read with Section 8(c) of NDPS Act by the learned Special Judge and found them guilty of the said charge. The first appellant/A1 was sentenced to undergo rigorous imprisonment for 20 years and to pay fine of Rs.1,00,000/- and the second appellant-A2 was sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.1,00,000/-. 3. Challenging the said order of conviction and sentence, the appellants filed the present appeal. 4. I have heard Sri M.Rathanga Pani Reddy, learned counsel appearing for the appellants and the learned Additional Public Prosecutor representing the State. 5. Shortly stated, the prosecution case is that on 26.02.2007 PW4-the Inspector of Prohibition and Excise, Task Force, Ongole on the instructions of the Superintendent of Prohibition and Excise was conducting vehicular check along with PW.3-Sub Inspector of Prohibition and Excise and staff on N.H.5 road in Tanguturu Village near Toll Plaza. It is said that the vehicular check was for the purpose of detecting prohibition and excise offences. At about 9.30 PM the checking party stopped private bus bearing No.AP-16/TW 2060 belonging to Kesineni Travels which was proceeding towards Bangalore from Vijayawada. PW.4- Inspector of Prohibition and Excise informed the driver of the said bus about the search and served on him the search proceedings under Section 165 of Cr.P.C covered under original of Ex.P.1(a). He secured the presence of PW.2- B.Lukaiah, toll gate employee, driver of the bus and PW1- cleaner of the bus. PW-1 took them as mediators and started searching the passengers and their luggage in the bus. The appellants/A1 and A2 were found in different seats having one bag underneath their seats. On suspicion PW.4 questioned as to the contents of the bags underneath the seats of the appellants which were at different places in the bus. The appellants admitted that the said bags were containing ganja. It was further disclosed by the appellants that they have more bags containing ganja which were placed in the left side of dickey of the bus. PW.4 opened the dickey and removed five more bags containing ganja in polythene bags packed in news papers. In all the seven bags, there was 69 kgs of ganja. On being questioned, the appellants disclosed that the first appellant purchased the ganja from unknown person at Paderu in Visakhapatnam District and engaged A2-second appellant on payment of Rs.1000/- to accompany him to Palamaneru for transporting ganja bags. PW.4 collected samples of 50 grams each from seven bags. The ganja bags were maked as MOs.1 to 7 before the trial Court and the samples were marked as MOs.8 to 14. They were duly packed and sealed and identification labels were affixed on the sample packets as well as ganja packets. 6. The search, seizure, taking of samples and arrest of the appellants, was done under Ex.P.9(b) mediatornama. The appellans and the contraband articles were brought to the excise police station. PW.5-the Prohibition and Excise Inspector, Ongole registered a case in P.R.No.177/06-07 under Section 8(c) read with 20(b) of the NDPS Act and issued Ex.P.10-FIR. Subsequently, after completing the investigation, charge sheet was laid against the appellants. 7. In the course of the trial before the learned Special Judge, the prosecution in order to establish its case, examined PWs.1 to 5, marked Exs.P.1 to P.11(c) and MOs 1 to 14. Ex.C.1 was marked by the Court. The learned Special Judge on consideration of the entire evidence on record convicted the appellants for the offence punishable under Section 20(b)(ii)(c) of the NDPS Act and sentenced them to punishment as mentioned above. 8. The point for consideration in this appeal is whether the conviction and sentence recorded by the learned Special Judge for the offence punishable under Section 20(b)(ii)(c) of the NDPS Act against the appellants can be sustained? 9. The learned counsel appearing for the appellants would submit that absolutely there is no material to connect the appellants to the ganja bags which were allegedly seized from the bus, PW.3-Sub Inspector of Prohibition and Excise took the ganja bags to Tangutur Village which is at a distance of one kilometer from the place of occurrence, drew the samples and then brought them to the place of occurrence, the search, seizure and also the sampling process are vitiated. The learned counsel would further submit that while conducting search, the mandatory provisions of Section 50 of the NDPS Act have not been complied with by PW.4 and therefore, the entire search proceedings allegedly conducted by PW.4 are vitiated and the learned trial Court erred in convicting the appellants. 10. On the other hand, the learned additional Public Prosecutor representing the State contended that there is no legal impediment to base a conviction on the evidence of official witnesses, absolutely the official witnesses have no enmity whatsoever with the appellants, the learned trial Court rightly convicted the appellants for the offence alleged and therefore, he seeks to confirm the order of conviction and sentence passed by the trial Court. 11. As regards the contention put-forth by the learned counsel appearing for the appellants that PW.4-Inspector of Prohibition and Excise, who is empowered to search the appellants and seize the contraband articles, did not follow the provisions of Section 50 of the NDPS Act. I would like to state that the search conducted was in respect of the bags which were said to be underneath the seats of the appellants in the bus, the said search cannot be said to be the personal search of the appellants and PW.4 is not required to follow the mandatory provisions of Section 50 of the NDPS Act. 12. In this case, except the testimony of Excise officials, no other independent evidence is forthcoming showing the complicity of the appellants in possessing the contraband articles. It is true that if the evidence of the police witnesses is trustworthy and reliable, the Court can base a conviction on the said evidence notwithstanding the fact that the independent witnesses did not support the prosecution version. But, if the Court finds that the entire procedure adopted by the officer empowered to conduct search and seizure is not in accordance with the procedure prescribed by law and is vitiated it is not possible to base a conviction solely on the evidence of the police witnesses. 13. In the first place, I would like to point out that there is no material in this case to show that either the ganja bags which were found underneath the seats of the appellants in the bus or the remaining five ganja bags which were found in the dickey of the bus belong to the appellants, none of the passengers of the bus were examined by the prosecution. They were not even cited as witnesses by the prosecution to prove the said fact. When the appellants boarded the bus with five bags, they would purchase the tickets for them as well as for the luggage and it furnishes best evidence to show that the contraband articles belong to the appellants. PW.-4-Inspector of Prohibition and Excise stated that A1 belongs to Kadapa and A2 belongs to Paderu. He allegedly seized cell phone, cat card, besides journey tickets from the appellants. He sent the articles along with the property form to the Court. But the said articles were not marked which fact has been admitted by PW.5 in his evidence. 14. During the course of evidence, the explanation offered by PW.5 is that they were produced along with property form, but returned by the Court, he brought them to the Excise Station, kept them in the Station itself, and did not produce them before the Court again. Therefore, in my view from the oral testimony of PWs.4 and 5 the official witnesses, it is not possible to hold that the appellants were travelling with the contraband articles which were being carried in the bus. Though the cleaner of the bus admitted that the Excise Officials conducted search in the bus and two ganja bags were seized from underneath the seats of the appellants and five more bags were seized from the dickey of the bus, it is not sufficient to come to conclusion that the appellants were travelling with the ganja bags. 15. Further the entire property in the case was allegedly seized on 26.02.2007 at about 9.30 PM. As could be seen from Form No.66 sent to the Court, the property was received on 26.03.2007. Thus, there is inordinate delay in sending the property to the Court. This aspect raises any amount of suspicion regarding the seizure and also as to whether the property which was said to have been really seized was sent to the Court at all. This also casts a reasonable doubt in the process of sending sample for analysis to the chemical analyst. As could be seen from Ex.P.11(c) report of analysis (Form L) the samples were sent for analysis on 29.03.2007. The long delay in sending the sample also raises a doubt as to whether the sampling process was done properly and the same property which was seized on the date of the alleged occurrence was sent for the analyst for chemical analysis and this is a serious lapse in the prosecution case. 16. PW.3 stated in the cross-examination before the learned trial Court that he took seven bags of contraband articles to Tangutur in vehicle which is at a distance of one kilometer from the place of occurrence, got them weighed and brought them back. He stated that he does not know the name of the owner of the kirana shop where he weighed the contraband articles. He further stated in the cross- examination that after getting the contraband articles weighed, he took 50 gms of ganja from each bag as sample and brought them back separately. He also further admitted in the cross-examination that there were no written proceedings in respect of weighing the contraband articles and taking samples at Tangutur village. 17. PW.4, the investigating officer also admitted in the cross-examination that he sent PW.3-Sub Inspector of Police to get the contraband articles MOs1 to 7 weighed at Tangutur village, PW.3 after getting them weighed at Tangutur village informed the particulars to him and thereafter handed over them in the Excise Station, Ongole. Therefore, neither the mediators nor PW.4-Investigating Officer were the witnesses to weighing of the ganja bags or for taking samples from the ganja bags. Evidently, the entire process was not done in the presence of the appellants. PW.4 also admitted in the cross-examination that before sending the bags for weighing, no identity slips were fixed. It is further admitted that he did not give any written authorization to PW.3 to get the ganja bags weighed. 18. In this context, I would like to refer a decision relied upon by the learned counsel appearing for the appellants in KULDEED SINGH v STATE OF PUNJAB[1] in which case before the Supreme Court, the boxes containing contraband articles were seized and carried to the police station, samples were taken by the Station House Officer only after the bags were taken to police station. Referring to the said situation, the Supreme Court held as follows: “We are unable to accept the latter part of the submissions relating to collection of samples at the police station from the seized goods, which had been sealed by PW.3. Malkiat Singh, Non collection of samples at the initial stage of seizure was a defect, which could not have been cured in the manner in which it was done by opening the bags which had been sealed by Malkiat Singh and mixing the contents thereof.” 19. If we examine the facts of the present case, obviously in the present case also the samples were not collected at the place where they were seized and the place where the mediator-nama was drafted. The evidence of PWs.3 and 4 clearly reveals that on the instructions of PW.4, PW.3 took the ganja bags to Tangutur village at a distance of one kilometer on a vehicle, got them weighed and he took the samples there itself and conveyed the information to PW.4 and thereafter went to excise station and handed over the entire case property. In the instant case it can be undoubtedly said that the entire procedure relating to search, seizure and collection of samples is vitiated. Weighing of ganja and taking samples was not done either in the presence of the mediators or in the presence of the appellants. Therefore, the process of search and collection of samples is entirely vitiated and basing on such kind of search, seizure and sampling process the appellants cannot be convicted. The trial Court ignoring all these fundamental errors, erroneously convicted the appellants for the offence under Section 20(b)(ii)(c) read with Section 8(c) of the NDPS Act and the appellants are entitled for acquittal. 20. In the result, Criminal Appeal is allowed setting aside the conviction and sentences passed against the appellants- accused Nos.1 and 2 by the Special Judge NDPS Cases- cum-I Additional District and Sessions Judge, Ongole, in Sessions Case No.21 of 2007, dated 13.03.2009. The appellants-accused Nos.1 and 2 are acquitted of the charges with which they are charged. They are set at liberty forthwith, if they are not required to be detained in any other case. __________________ Date: 26.08.2011 R. KANTHA RAO, J Note: L.R copy to be marked. B/O kvrm HON’BLE MR JUSTICE R. KANTHA RAO Criminal Appeal No.373 OF 2009 DATE: 26.08.2011 [1] 2011CRL.L.J 2672