IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE FIFTH DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No.487 OF 2010 Between: State of A.P., represented by the Public Prosecutor ..... APPELLANT AND Kandavilli Bhooka, S/o. Appanna and another ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL (SR) No.3682 OF 2005 JUDGMENT: This Criminal Appeal, under Section 378 (3) & (1) of the Code of Criminal Procedure, 1973, (for short, “Cr.P.C.”) is filed by the State against the Judgment, dated 07.07.2004, in S.C.No.10 of 2003 (N.D.P.S.), on the file of the Special Judge to try the offences under N.D.P.S. Act – cum- Metropolitan Sessions Judge, Visakhapatnam, whereunder and whereby, the respondents/A1 and A3 were found not guilty of the offence under Section 20 (b) (i) read with 8 (c) of Nacrotic Drugs and Psychotropic Substances Act, 1985, (for short, “N.D.P.S. Act”) read with 34 of the Indian Penal Code, 1860 (for short, “I.P.C.”). 2. The brief facts that are necessary for disposal of the prosecution case may be stated as follows: On 28.08.2001, at about 03:00 PM, while A1 was driving the jeep near Government Degree College, Chodavaram, along with A2, the excise police intercepted them and took them to PW.1, who is the Additional Judicial First Class Magistrate, Chodavaram, and in his presence search was conducted and in pursuance of the search, M.Os.9 to 12 i.e, polythene bags with ganja, were seized in the presence of PWs.2 and 4, who are mediators. Immediately, after the search, A2 absconded from that place. He could not be apprehended thereafter. A1 was taken to the Prohibition and Excise Police station, Chodavaram, where PW.3 - Prohibition and Excise Inspector, Chodavaram, registered a case. Four sample packets have been sent to the Chemical Examiner, Regional Laboratory for Excise, Visakhapatnam, for analysis. A3 was also shown as accused and he surrendered before the Court. The Chemical Examiner, after analysing the samples, opined that the samples contained Ganja, belonging to the family ‘cannabinaceae’. After completion of the investigation, the police filed charge sheet. 3. After the accused were examined under Section 239 Cr.P.C., charge for the offence under Section 20 (b) (i) read with 8 (c) of N.D.P.S. Act read with 34 I.P.C., they denied the offence, pleaded not guilty and claimed to be tried. 4. To substantiate the case of the prosecution, the prosecution examined PWs.1 to 6 and got marked Exs.P-1 to P-11, besides case properties M.Os.1 to 15. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same and reported no evidence. 6. The trial Court, after considering the evidence available on record, came to the conclusion that except the solitary evidence of PW.3 there is no other evidence and accordingly, acquitted the accused. Challenging the same, the present Criminal Appeal is preferred by the State. 7. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt against the accused for the offence under Section 20 (b) (i) read with 8 (c) of N.D.P.S. Act and read with 34 I.P.C. and whether the judgment of the trial Court is correct, legal and proper? 8. The learned counsel appearing for the learned Public Prosecutor contended that when PW.3 searched A1 and A3 in the presence of PW.1, they were found in possession of ganja and as per the report of the Chemical Examiner i.e., Ex.P-11, the sample belongs to the family of ‘cannabinaceae’ and therefore, the prosecution proved its case beyond all reasonable doubt against the accused and hence, she prays to set aside the order of acquittal. 9. There cannot be any dispute that in dealing with the Criminal Appeal against the order of acquittal, though the Appellate Court has got full power to re-appreciate the evidence available on record, but it will be slow in interfering with the findings in view of the fact that there is a presumption under law that the accused is presumed to be innocent unless contrary is proved by the prosecution beyond all reasonable doubt. That presumption of innocence is further strengthened by an order of acquittal. Unless there are compelling or substantial reasons viz., the findings are perverse, or not based upon any evidence, or admissible evidence has not been taken into consideration, ordinarily this Court would not interfere with the same. In short, there must be compelling or substantial reasons while interfering with the order of acquittal. 10. Mere possession of ganja is an offence punishable under Section 20 (b) (i) of the N.D.P.S. Act. Ex.P-11 is the Analyst Report, which would go to show that the sample analysed by the Analyst is ganja belonging to the family of ‘cannabinaceae’. Under Ex.P-10 – letter of advice, four samples have been sent to the Chemical Examiner for analysis. The question is whether the ganja was seized from the possession of A1 and A3. 11. Insofar as A3 was concerned, admittedly he is the owner of the jeep from which the ganja was seized. There is no evidence to show that A3 was having knowledge with regard to the transport of ganja in his vehicle or with his connivance only A1 was transporting ganja. So, there is absolutely no evidence to show that with the knowledge and consent of A3 only the ganja was being transported in his vehicle. Therefore, the trial Court rightly acquitted A3. 12. Insofar as A1 is concerned search proceedings have been served on him by PW.3. As PW.3 wanted the search to be made in the presence of Gazetted Officer, the accused were taken to PW.1 immediately and search was conducted wherein ganja was seized. Admittedly, no mediators report was scribed at the time of conducting search, in the presence of PWs.2 and 4, who said to be mediators for seizure of ganja from the possession of A1 and A3, did not support the case of the prosecution. They simply stated that the excise police obtained their signatures on the mediators report. Therefore, the only evidence available on record is the evidence of PW.3, who is the investigating officer. Simply because PW.3 is an Excise official, it does not mean that his evidence has to be brushed aside. But, it has to be appreciated like that of any other evidence. If there are any inherent infirmities or improbabilities in his evidence, then only corroboration is required before accepting the evidence of police officer. The main ground on which the trial Court has not placed an implicit relevance on the evidence of PW.3 is that he has not obtained the signature of the accused on the mediators report, Ex.P-3, and the copies of the same were not served on accused to show that the contraband has been seized from the possession of A1, when he was arrested on 28.08.2001 at about 04:45 PM. No other police officer who was present at the time of the said seizure has been examined. If really the accused were present at the time of search by PW.1, the signatures of A1 and A3 must have been obtained on the Mediators Report. Therefore, the trial Court has not placed any reliance on Ex.P-2 proceedings. A2 was absconding and could not be apprehended. The property produced before the trial Court does not contain any identity or label to show that they have been seized from the possession of A1. The police did not try to make any attempt to trace the absconded accused i.e, A2. Therefore, the trial Court rightly acquitted the accused and the said order needs no interference of this Court, as there are no substantial reasons to interfere with the same. Hence, the Criminal Appeal is devoid of merit and is liable to be dismissed. 13. Accordingly, the Criminal Appeal is dismissed at the stage of admission, confirming the judgment, dated 07.07.2004, in S.C.No.10 of 2003 (N.D.P.S.), on the file of the Special Judge to try the offences under N.D.P.S. Act – cum- Metropolitan Sessions Judge, Visakhapatnam. _______________ K.C. BHANU, J 05.02.2010 MD