THE HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL APPEAL No.264 OF 2007 JUDGMENT: 1 The appellants herein are A.1 to A.3 in S.C.No.39 of 2002 on the file of the Court of the Special Judge for Trial of cases under N.D.P.S. Act, 1985-cum-I Additional Sessions Judge, Khammam where under appellants 1 and 2 were found guilty for the offence U/s 8(b) punishable under Section 20(a) (1) of NDPS Act and were convicted under section 309 of Old Cr.P.C. for the offence punishable under section 8(b) r/w 20(a) (1) of NDPS Act; the third appellant was found guilty for the offence under section 29 of the NDPS Act and was convicted under section 309 of Old Cr.P.C. for the offence punishable under section 29 of NDPS Act (For short ‘the Act’). 2 The case, in brief, as per the evidence of the prosecution is that on 15.01.2002 on receipt of information about cultivation of ganja, P.W.17 the S.I. of Police proceeded to the scene of offence along with P.W.1 and others. Initially the raid party visited Battupalli forest area, seized ganja and registered a case in CR.No.1 of 2002 against the accused therein and also took them into custody. Thereafter P.W.13 and 14 the other police officers of the raid party proceeded to Regalla forest land and there they found the appellants 1 and 2 and also found large number of ganja plants. When questioned, according to P.W.13, the appellants 1 and 2 confessed that they raised ganja plants in the said reserve forest. After confirming that the said plants are ganga plants, the raid party lifted the same and burnt them. A panchanama was prepared, which was marked as Ex.P.7 during the course of trial. On the basis of the said confession and the panchanama drafted at the scene of offence a case in Cr.No.2 of 2002 was registered against the appellants 1 and 2 under section 8 of the NDPS Act. Ex.P.10 is the FIR. The Deputy Superintendent of Police took up investigation on 23.3.2002 and during the course of investigation he examined Ex.P.2, 3 and others and on the basis of the evidence collected from P.Ws.2 and 3 he arrested the third appellant who was Sub Inspector of Police of Karakagudem P.S. on the ground of abetment. According to his investigation P.W.2 and 3 alleged to have told him that the third appellant directed them not to visit the said ganja plantation area and the said plantation is known up to the level of Sub Divisional Police Officer and if they visited the said area there is likelihood of loosing their jobs. As the said accusation against the third appellant attracts the provisions of section 29 of the Act, the said section is also included against the third appellant and thus the FIR was altered and the alternation memo is marked as Ex.P.9. On 09.05.2002 and 19.06.2002 the Deputy Superintendent of Police recorded the statements of other witnesses i.e. P.Ws.14 and 17. The samples that were collected during the course of the said raid at Regalla forest area were sent to the laboratory on 22.2.2002 and the chemical examiner after examining the substance, sent a report establishing that the same is ganga. The said chemical report was marked as Ex.P.8. After completion of entire investigation and on receipt of the analyst report P.W.16 filed the charge sheet. 3 During the course of trial the prosecution examined as many as 18 witnesses out of whom only P.Ws.1 to 3 supported the case of the prosecution and the remaining witnesses were declared hostile. 4 As stated supra, on the basis of the said evidence i.e. evidence of P.Ws.1 to 3, the Court below came to the conclusion that the appellants 1 and 2 are guilty of the offence punishable under 20 (a) (1) of the Act and accordingly sentenced them to suffer rigorous imprisonment for a period of four years and to pay a fine of Rs.200/- each, in default, to suffer simple imprisonment for a period of one month. The third appellant was convicted under section 29 of the Act and is sentenced to suffer rigorous imprisonment or a period of four years and to pay a fine of Rs.200/-, in default to suffer simple imprisonment for a period of one month. 5 It is mainly contended by the learned counsel for the appellants Mr. Praveen Kumar that there is absolutely no evidence on record to establish that the appellants 1 and 2 have raised ganja plants and they have been cultivating ganja. In the absence of any evidence that they have raised the said ganja plants, according to him, it is not safe to convict them for the offence under section 8(b) of the Act. In so far as the third appellant is concerned, according to the learned counsel for the appellants the said case has been foisted at the instance of the Superintendent of Police who is enimical towards him. According to the learned counsel, the said evidence of P.Ws.1 to 3 is of no help for the reason that the said statements are made after the crime has been registered. According to him if really it is a fact that the third appellant has directed them not to visit the said area from where the ganja was alleged to have been seized, nothing prevented them in coming forward and bringing the same to the notice of the superior officers about the said direction given by the third appellant. The leaned counsel further contended that there is discrepancy with regard to the time and date. According to him one witness says that two months prior to the alleged incident the third appellant directed him so, whereas another witness says that the said direction was given by the third appellant about five days prior to the incident. Summing up he contended that the Court below on some surmises and conjunctures convicted the appellants as if they are guilty of the said offences for which they were tried and ultimately prayed to acquit the appellants from the charges leveled against them. 6 Per contra, the learned Additional Public Prosecutor submitted that it is true that there is no evidence to effect that the appellants 1 and 2 are cultivating ganja but their presence at the scene of offence by the time the raid party visited the said place clearly reveals that they are in cultivation of ganja. Further according to him the appellants 1 and 2 on their own made the said confession and it is not on record that because of some pressure or some thing they made the said confession. Further according to the learned Additional Public Prosecutor the so called discrepancy pointed out by the learned counsel for the appellants with regard to the evidence of P.Ws.2 and 3 is of no consequence and on that score alone the third appellant cannot be acquitted. According to him, P.Ws.2 and 3 are working as Police Constables and there is no need for them to speak falsehood against their superior i.e. the third appellant and these factors were taken into consideration by the learned trial Judge in holding that the appellants are guilty of the offence for which they were tried and he finally contended that it is not a case for interference. 7 In the light of the arguments canvassed by the learned counsel on either side, this court looked into the evidence both oral and documentary adduced during the course of trial. It is true that P.Ws.4 to 12, the alleged eye witnesses, did not support the case of the prosecution and the entire case rests on the evidence of P.Ws.1 to 3 and the remaining official witnesses. In so far as the seizure etc., are concerned the entire case rests on the evidence of PWs.1, 13 and 17. 8 To connect the third appellant or bring home the guilt of the third appellant for the offence under section 29 of the Act, the prosecution mainly relied on the evidence of P.Ws.2 and 3. No doubt it is true that the said ganja was seized in the presence of P.Ws.1, 13 and 17. But it is not their case or evidence that the appellants 1 and 2 were found in any one of the operations such as sowing, growing, cutting etc. As per their evidence appellants 1 and 2 were found near the said ganja plantation situated at Regalla forest area. From that it cannot be said that the appellants 1 and 2 are really the persons who have cultivated the said ganja. The requirement as per the said Act to bring home the guilt of the accused person for the offence under section 8 of the Act is by producing evidence to the effect that the said person is engaged in the cultivation of ganja. In the absence of any proof that the accused person is in the cultivation of ganja, it is not safe to convict them as if they are guilty of the said offence. When looked at the evidence of P.Ws.1, 13 and 17, their evidence only establishes that the appellants 1 and 2 were near the ganja plantation but not that they are engaged in the said cultivation. Hence this court has no hesitation to hold that the benefit of doubt can as well be given to the appellants 1 and 2. 9 In so far as the third appellant, who was the Sub Inspector of Police, Karakagudem P.S. at the relevant point of time, is concerned, it is true that P.Ws.2 and 3 have made confessions before the investigating officer P.Ws.16 stating that the third appellant directed them not to visit the said ganja area stating that they may loose their jobs if they visit that place. As rightly contended by the learned counsel for the appellants, if really it is a fact that the third appellant directed them not to visit the place where the ganja was raised, why did not they come out openly and inform the same to their superiors. In my considered view it throws a doubt with regard to the veracity of the said confession/statement. Of course it can be said that P.Ws.2 and 3 are only police constables whereas the third appellant is their superior i.e. Sub Inspector of Police and on account of fear they could not come out openly before the crime was registered. But, when once it is their statement that the third appellant directed them not to visit the said ganja plantation area and it is within their knowledge, as dutiful persons of the police department, they should have brought the same to the notice of their superiors immediately but not at the stage when the crime was registered against the third appellant. This also throws any amount of doubt on the case of prosecution. 10 Further, the learned counsel for the appellants has drawn attention of this court with regard to the sample and seizure. According to him there is absolutely no proof that the sample that has been sent to the chemical examiner is the same that was seized from out of the Regalla forest area. To establish the said fact, according to the learned counsel, the prosecution should have sent the sample seal also to the chemical examiner and in that context he relied upon the ratio laid down by the Apex Court in State of Rajasthan Vs. Gurmail Singh[1] wherein the apex court observed as follows: “……. We further find that no sample of the seal was sent along with the sample to the Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband…….” 11 In the light of the above discussion, this court is of the view that the learned trial Judge erred in convicting the appellants as if they are guilty of the offences for which they were tried. 12. Accordingly this Criminal Appeal is allowed and the conviction and sentence imposed by the learned Special Judge for Trial of cases under N.D.P.S. Act, 1985- cum-I Additional Sessions Judge, Khammam against the appellants in SC No.39 of 2002 are set aside. The fine amount paid by the appellants shall be refunded to them. The bail bonds of the appellants shall stand cancelled. -------------- kvsn 02.03.2010 [1] (2005) 3 SCC 59