IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE SEVENTEENTH DAY OF NOVEMBER TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL APPEAL No. 819 of 2008 Between: Gara Chiranjeevi & another .. Appellants AND The State of A.P. .. Respondent AND CRIMINAL APPEAL No. 853 of 2009 Between: Gara Chiranjeevi .. Appellants AND The State of A.P. .. Respondent The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL APPEAL Nos. 819 of 2008 & 853 of 2009 COMMON JUDGMENT: The conviction of the first and second accused in S.C.No.2 of 2008, on the file of the Special Judge for N.D.P.S. Cases-cum- I Additional District & Sessions Judge, Ongole, by the judgment, dated 28.05.2008, led both the accused to file Crl.A.No.819 of 2008 and the first accused to file Crl.A.No.853 of 2009 challenging their conviction and sentences. 2. The Prohibition and Excise Inspector, Ongole, filed the charge sheet in P.R.No.149/07-08 of Prohibition and Excise Station, Ongole, against both the accused stating that on 04.12.2007, the Prohibition and Excise Inspector, Enforcement Wing, Nellore, along with his staff stopped the APSRTC Bus No.AP 28Z 890 near the Toll Plaza at Tangutur on N.H.5 Road. The driver and the conductor of the bus were requested to act as Mediators and after issuing Search Proceedings, both the accused were found to be sitting on the backside of the driver’s seat with six bags placed at their feet. The accused were stated to have claimed the bags containing ganja and on refusal of both the accused in spite of information about the procedure prescribed by Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “the NDPS Act”), the bags were opened and on verification of the three bags of the first accused, they were found to contain 7.500, 12.500 and 11.00 kgs of ganja respectively and the three bags of the second accused were found to contain 19.00, 22.00 and 14.00 kgs of ganja respectively. On the accused disclosing their identity and confessing their guilt, the Inspector got the ganja weighed and drew 50 grams of ganja from each bag as sample. The packets were sealed and the samples were seized along with the bus tickets of the accused and both the accused were arrested under the cover of the Mediators’ report. The Mediators’ report was registered as a crime by the Prohibition and Excise Inspector, Ongole, and the Analyst opined the samples sent to be ganja. Hence, the charge under Section 8 (c) read with Section 20 (b) (ii) (c) of the NDPS Act. 3. After the offence was taken cognizance by the special Court, copies of the documents were furnished to both the accused, on their appearance and to charges framed under Section 20 (b) (ii) (c) read with Section 8 (c) of the NDPS Act, both the accused pleaded not guilty. The prosecution examined P.Ws.1 to 6 and marked Exs.P-1 to P-11 and M.Os.1 and 2 during trial and the accused denied the incriminating circumstances appearing in the evidence against them when they were examined under Section 313 of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C”), and no defence evidence was produced. 4. The trial Court rendered the impugned judgment referring to the evidence in detail accepting the evidence of P.Ws.1 to 4 and 6 about the RTC bus being stopped near Toll Plaza of Tangutur on 04.12.2007 at about 7.40 p.m. and P.Ws.1 and 2, the driver and the conductor, acting as Mediators for the search. The trial Court also accepted that six bags containing ganja were found in front of the legs of the accused sitting in the bus and the trial Court also accepted that the Excise Inspector informed both the accused about their right to be searched in the manner prescribed by the special statute which opportunity was not availed by the accused. The trial Court further accepted the version of the bags being found to contain ganja on being opened and samples being drawn from each of the bags and sealed and the accused being arrested and the property being seized under the Mediators’ report. The contention of the defence counsel that M.Os.1 and 2 might have belonged to some other passenger also, when admittedly there were number of other passengers in the bus was not accepted as P.Ws.1 and 2 stated about the Ganja being found at the feet of both the accused. Though P.Ws.1 and 2 did not state about the accused boarding the bus along with M.O.1-bags, as the Investigating Officers, P.Ws.3, 4 and 6, categorically deposed about finding M.O.1-bags at the feet of the accused which was corroborated by P.Ws.1 and 2 and in view of the positive evidence about the further events including the bus tickets under Exs.P-3 and P-4 seized from the accused proving the identity of the accused as the persons who were arrested in the bus, finding that the prosecution proved the case against the accused beyond reasonable doubt, the special Judge, therefore, found both the accused guilty of the offences with which they were charged and examined them under Section 235 (2) Cr.P.C. regarding the sentence. Taking into consideration their pleas and opining that this is not a fit case to take a lenient view, the trial Court imposed rigorous imprisonment for 10 years and a fine of Rs.1,00,000/- on each accused with a default sentence of simple imprisonment for one year in case of non-payment of fine. The remand period was ordered to be set off. M.Os.1 and 2 were ordered to be destroyed after appeal time. 5. Both the accused challenged the said conviction and sentences claiming that the accused were not connected with the ganja in M.Os.1 and 2 and the non-examination of any other passenger in the bus also could have been appreciated. The driver and the conductor did not state about the accused boarding the bus with M.O.1-bags and in the absence of any direct or circumstantial evidence to prove the accused possessing the Ganja and in view of the non-compliance with the mandatory procedure under Section 50 of the NDPS Act, the accused should have been acquitted, more so, when the Mediators did not fully support the case of the prosecution. It was further contended that no independent witness was involved in the search and the alleged confession of the accused is unnatural. The accused had no past criminal record and in the absence of any independent evidence in spite of the alleged scene of offence being at the Toll Plaza near Tangutur, in a bus loaded with passengers, the prosecution version could not have been accepted. The exorbitant fine is beyond the reach of the accused for their life and hence, the accused desired their conviction and sentences to be reversed. 6. Heard Sri N. Ravi Prasad and Sri Kurra Srinivas, learned counsel for the appellants/accused and Sri Rudresh Deshpande, learned counsel representing the learned Public Prosecutor/the respondent. 7. The point for consideration is whether the conviction of the accused 1 and 2 is liable to be reversed and if not, whether the sentences imposed on them are liable for any reconsideration. 8. The evidence of P.W.1 and P.W.2, the driver and conductor of the APSRTC bus, is independent and they were not stated to have any acquaintance with or adverse interest against the accused or positive interest in the prosecution or its officials. Both of them stated about their bus being stopped at the relevant time on the specified day near Tangutur Toll Gate by the Excise Officials, who seized six bags which were kept in the bus and they also stated about the two accused being arrested in their presence under the cover of a Panchanama, for which they acted as Mediators. They further deposed about the samples being taken and sealed from each of the bags and though both of them could not identify the accused present in Court as the persons arrested on the date of the incident, the natural lapse of memory should account for such statements, more so, when P.Ws.1 and 2 had absolutely no previous acquaintance with either accused and had seen them only for few moments of the conduct of the proceedings on the date of their search and arrest. P.Ws.1 and 2 stated in detail about the proceedings in a like manner as claimed by the prosecution and P.W.1 claimed to have also informed his Depot Manager about this incident. P.W.2 also stated about the seizure of the bus tickets by the police from the two persons arrested and he identified Exs.P-3 and P-4-Bus Tickets. The Panchanama- Ex.P-1 and the Search Proceedings-Ex.P-2 were informed by P.Ws.1 and 2 as those attested by them as independent Mediators. P.W.2 also explained that they did not charge anything from the accused for carrying six bags, as each passenger can carry upto 50 kgs of luggage. 9. P.Ws.3, 4 and 6, the Excise Officials, also stated about the proceedings similarly as P.Ws.1 and 2 and in tune with the allegations in Exs.P-1 and P-2. It is true that the witnesses P.Ws.1 to 4 and 6 have not spoken uniformly about the seats where the accused sat in the bus with P.Ws.2 and 3 stating the accused to be sitting in the fourth or fifth row behind the seat of the driver and P.W.4 stating about the accused sitting in the seat on the rear side of the conductor, while P.W.6 stated that the accused were sitting in the seat on the rear side of the driver. The discrepancy need not be considered as material in view of the lapse of time between the incident and the evidence and mathematical precision cannot be expected of oral evidence at such a distance of time due to natural lapse of human memory. P.W.3, of course, also spoke about the number of samples drawn at the time of the search and seizure, while the other witnesses spoke uniformly in tune with the prosecution story regarding taking of the samples. The Excise Officials positively stated about informing both the accused about their rights under the mandatory provisions of the special statute, which the accused had not availed and the six zip bags, stated by the witnesses, to have been found at the feet of the accused could not have been assumed to be belonging to some other persons, as it will be the ordinary and natural course of human conduct to have a passenger’s luggage near the passenger himself so as to have physical control over the same. It is also true that the placement of the six bags in the bus was also not spoken to totally uniformly by the witnesses. It was only P.Ws.1 and 2 who stated about luggage being underneath the seats and on the luggage carrier, while P.Ws.3, 4 and 5 stated the same to be at the legs of the accused. The driver, in the ordinary and natural course of human conduct, could not have noted the places where different passengers have kept their luggage and the conductor, who will be busy with his duty, might not have minutely watched when the Excise Officials entered the bus and picked up the luggage of the accused. 10. Though it is true that there are some contradictions in the evidence of the prosecution witnesses, they do not appear to be substantial and material as to throw any doubts on the credibility of the prosecution story, more so, when no reasons or motives are attributed to any of the witnesses to implicate the accused falsely in a crime except suggesting that the case was foisted for statistical purposes. The trial Court had the advantage of observing the demeanour of the witnesses and on a detailed analysis has come to a conclusion that the prosecution had successfully proved its case beyond reasonable doubt. On the happening of the events in the manner elicited as such, either accused being found guilty of being found in possession of ganja while they were travelling in the bus, cannot be considered unreasonable or improper and merely because there were number of other passengers in the bus, no doubt could have been created about any other such passenger being interested in that luggage on mere suspicion. 11. Sri N. Ravi Prasad, learned counsel for the accused/appellants referred to KOMMOJI KIRAN KUMAR @ KIRAN VS. STATE OF A.P.[1]. That was a case where the witness had not supported the version of the prosecution during his cross-examination and was cross-examined by the prosecution as a hostile witness. In the present case, though P.Ws.1 and 2 were not sure about identifying either accused before the Court, their positive evidence about the incident proper rules out any scope for both the persons involved being anybody else than both the accused. P.W.1, in that case before the learned Judge, deposed that she did not go to the police station and did not give any report to the police and as the only other independent evidence available was the evidence of P.W.5, who also did not support the prosecution during cross-examination, the learned Judge gave the benefit of doubt to the accused. The facts of this case are distinguishable and the evidence of P.Ws.1 to 6 does not suffer from such fatal infirmities. 12. However, coming to the offence which has to be considered to have been made out, Sri N. Ravi Prasad, learned counsel for the accused/appellants placed reliance on ANIKOTTI JOSEPH BINOY VS. STATE OF ANDHRA PRADESH[2]. In that case, the learned Judge found that the ganja seized was stated to be 100 kgs in 19 packets, while possession of more than 20 kgs of ganja would have made the accused liable for being in possession of a commercial quantity. More over, as only 3 ½ kgs of ganja were sent to the Chemical Examiner, the learned Judge concluded that the entire contents of 100 kgs cannot be held to have been proved beyond preponderance of probabilities to be ganja. The learned Judge, therefore, found the accused therein guilty of an offence only to the extent of the quantity of Ganja that was sent to the Chemical Examiner and reduced the guilt to an offence punishable under Section 20 (b) (ii) of the NDPS Act and modified the sentence to the period of imprisonment already undergone by the accused. In the present case also, though the quantities found in the three bags of the first accused were stated to be a total of 31 kgs and the quantities found with the second accused were stated to be a total of 55 kgs, what were sent to the Forensic Science Laboratory for analysis were only six sample packets weighing 50 grams each. If the reasoning adopted by the learned Judge in the precedent cited were to apply to the facts of the present case, the accused 1 and 2 herein also should have to be found guilty of the lesser offence and have to be sentenced proportionately. Sri N. Ravi Prasad, learned counsel for the accused/appellants submitted that both the accused were suffering imprisonment since the date of the incident on 04.12.2007 and the second accused paid the fine amount of Rs.1,00,000/- and he requested that the period of imprisonment already undergone and the fine already paid may be held to suffice the requirement of a reasonable penalty for the offence for which they were found guilty. 13. If the accused were to be found to be not involved in possession of commercial quantity of contraband, they will be guilty under Section 20 (b) (ii) (B) of the NDPS Act which is punishable with a sentence of imprisonment which may extend to 10 years and with fine which may extend to Rs.1,00,000/- with no minimum prescribed for either. The accused were indeed found by the trial Court to have had extenuating circumstances in the first accused having to maintain his aged parents and the second accused having to maintain his wife and two minor children. Even the prosecution did not allege them to be having any past criminal record and they are still young in age and can be considered to be given an opportunity of reformation on coming out of the prison soon and they must have been chastened persons after undergoing the ordeal of the prosecution and the confinement for almost four years by now. 14. Therefore, the judgment in S.C.No.2 of 2008, on the file of the Special Judge for N.D.P.S. Cases-cum-I Additional District and Sessions Judge, Ongole, dated 28.05.2008, is modified by finding both the accused guilty of an offence punishable under Section 20 (b) (ii) (B) of the NDPS Act and sentencing them to undergo a period of rigorous imprisonment for the period of imprisonment already undergone by them including the period of set off under Section 428 Cr.P.C. and further sentencing them to pay a fine of Rs.50,000/- (Rupees fifty thousand only) each with a default sentence of six (6) months each in the event of non-payment of fine. 15. The Criminal Appeals are ordered accordingly. Both the accused shall be set at liberty, if the fine amounts are paid and they are not required in any other cases. ___________________ G. BHAVANI PRASAD, J Date: 17th November, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL APPEAL Nos. 819 of 2008 & 853 of 2009 Date: 17th November, 2011 KL [1] 2005 (3) ALT (Crl.) 483 [2] 2008 (3) ALT (Crl.) 75 (AP)