THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.2516 of 2004 BETWEEEN: Panthati Bangari Kumara Swamy … Appellant AND The State through Prohibition & Excise Inspector … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2516 of 2004 JUDGMENT: The appellant/accused was convicted by the lower Court under Section 8(b)/20(a)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and was sentenced to rigorous imprisonment of two years and fine of Rs.3,000/-. Questioning the same, the accused filed this appeal. 2. It is alleged that on 20.11.2001 at about 2:00 P.M., the Excise officials along with Revenue officials on information went to Mallannapalli Village and found cultivation of the said land in S.No.337/B/3 with 62 ganja plants in the middle of cotton crop and that the accused cultivated the same. Plea of the accused is one of total denial and not guilty. After trial, the lower Court found the accused guilty of the said charge. 3. In the grounds of appeal, it is contended for the appellant that there is no acceptable evidence on record to show that the accused was in possession of that land in which 62 ganja plants were cultivated and that there is no evidence of cultivation of those plants by the accused. 4. PWs 1 and 2 are the mediators in Ex.P4- Panchanama. They are Village Sunkaries (Village Servants) of Rachapalli Village. The Excise officials took them as mediators for the panchanama that is going to be conducted. PWs 1 and 2 turned hostile to the prosecution. It is evidence of PW1 that Excise officials of Jammikunta, took him in a jeep and made to stand near the road and that the officials proceeded to the fields and that the accused was not present at that time and that the officials returned from the fields and took him to the Excise office and obtained his signatures on a blank paper. Ex.P1 is his signature in Ex.P4- Panchanama. PW2 deposed that he went along with Excise officials in a jeep, but he was entrusted with some work on which he went into the village and that subsequently, the Excise officials obtained his signatures at Excise office on a blank paper. He admits Ex.P2 as his signature in Ex.P4- Panchanama. PWs 1 and 2 did not give any reason for signing on blank papers. They are village servants. They are not criminals against whom any excise offences were booked previously, so that the excise officials can exercise some influence on them. There was absolutely no reason for PWs 1 and 2 to append their signatures on blank papers. The blank paper signatures theory put forward by PWs 1 and 2 cannot be believed for a moment. After having signed in Ex.P2- Panchanama, it is evident that PWs 1 and 2 were won over by the accused. 5. PW3 is the then Village Administrative Officer of Rachapalli Village. He says that the accused owns land of 20gts in S.No.227. He did not speak anything about the accused owning any land in S.No.337 in his Examination-in- Chief. He further says that the Excise officials asked him to come to the lands of the accused and that by the time he reached the fields, the Excise officials went away. He further says that he was again called by the Excise officials to their office in the evening and they obtained his signatures on panchanama, after reading over contents of the same to him. He admits that Ex.P3 is his signature in Ex.P4- Panchanama. In cross-examination for the accused, he says that the accused does not own any land in S.No.337 and he was not in possession of that land and that he did not witness the proceedings mentioned in the panchanama. Without witnessing the proceedings in Ex.P4- panchanama, it cannot be believed that the Village Administrative Officer signed in Ex.P4. No reason much less possible reason is put forward by PW3 as to why he signed in and what prompted him to sign in Ex.P4- panchanama, when he was allegedly not associated in the events mentioned therein. By the time of trial in the lower Court, PW3 retired from service and therefore, he came forward to speak in favour of the accused after he was won over by the accused. 6. PW4 is the then Mandal Revenue Officer, Jammikunta Mandal. By the time of giving evidence during trial in the lower Court, he was working as Revenue Divisional Officer at Narsampet. It is his evidence that on 20.11.2001, the Excise officials gave requisition to him to be present for the seizure proceedings of ganja from the accused and therefore, he accompanied them to Mallannapalli Village to the fields in S.No.337/B/3 out of which Ac.2.32 gts was found to be in possession of the accused and that they found 62 ganja plants grown among cotton plants. He says that the plants were plucked and samples were taken from those plants in two packets of 100 gms each. According to PW4, PWs 1 and 2 accompanied them as panch witnesses to the fields. He says that they prepared panchanama as per Ex.P4 for the entire proceedings and signatures of panch witnesses PWs 1 and 2 were obtained on the same. He identified MO.1 as the sample packet. He also collected Ex.P5-pahani patrika for the year 2001-02 issued by his office. In cross-examination, he says that there are four bits in S.NO.337 as A, B1, B2 and B3. Ex.P5 is true copy of pahani attested by Deputy Mandal Revenue Officer, MRO Office, Jammikunta. It shows that though pattadar for the land of Ac.2.32gts. in S.No.337/B/.3 was Vemula Bhumaiah, S/o.Rajaiah, it was in enjoyment of Panthati Bangari Kumara Swamy, S/o.Rajaiah, who is the accused herein. Simply because Ex.P5 does not contain any seal of office of PW4, it cannot be rejected because, it was certified by Deputy Mandal Revenue Officer and proved by PW4 in Court. PW4 deposed in cross-examination that he can locate the land only with the help of Patwari (Village Officer). PW3, who is the village Administrative Officer, accompanied the raid party and he signed in Ex.P4 in his capacity as Village Administrative Officer. PW5 who is the then Excise Inspector in Jammikunta Excise Station, speaks to going to the land of Ac.2.33 gts in S.No.337/B/3, along with PWs 1 to 4 and his staff and finding 62 ganja plants being cultivated in that land. In cross- examination, he deposed that the land was located with the help of PW3, who is the Village Administrative Officer. After plucking 62 ganja plants and preparing sample packets and seizing the same under the cover of Ex.P4- panchanama, PW5 destroyed the other ganja plants. PW5 registered Ex.P4 panchanama and issued Ex.P6- Crime and Occurrence Report and deposited the samples in Court on 08.04.2002 for onward transmission for chemical analysis. One of the sample packets was sent to the laboratory for analysis through Court. PW6 who is the successor of PW5, received Ex.P7- analysis report from Regional Prohibition and Excise Laboratory, Warangal, to the effect that the sample was ganja. Subsequenlty, PW6 filed charge sheet into the Court. 7. PW5 deposed in cross-examination that he received information through ‘Eenadu’ Newspaper. It is sought to be contended in the grounds of appeal that Section 42 of the Act was not complied with in this case. Since agricultural land is not an enclosed place and it is open agricultural field, Section 42 has no application to this case. The lower Court rightly came to the conclusion that compliance of Section 57 of the Act is only directory and not mandatory. 8. On scrutiny of the entire evidence on record, I am of the opinion that the lower Court came to the conclusion rightly in favour of the prosecution and found the accused guilty of the charge. 9. Since this is not a case of extensive cultivation of the entire land with ganja plants and since only 62 ganja plants were cultivated in the midst of cotton crop, period of imprisonment of two years is on higher side. 10. In the result, the Criminal Appeal is dismissed, but altering period of imprisonment from two years to six months. ______________________________ JUSTICE SAMUDRALA GOVINDARAJULU Dt:14.12.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2516 of 2004 Dt:14.12.2011 ysk