Bantapalli Durga Rao and Others vs State of A.P.

P.S. Narayana, J.—Bantupalli Durga Rao and two others, the accused in N.D.P.S. Case No.54 of 1998 on the file of the Special Judge under N.D.P.S. Act-cum-Metropolitan Sessions Judge, Visakhapatnam, had preferred the present Criminal Appeal aggrieved by the conviction and sentence imposed on them u/s 8(c) read with Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter in short referred to as ''Act'' for the purpose of convenience).

The case of the prosecution is that on 26.9.1998, at about 5 a.m., the appellants A1 to A3 were found sifting with gunny bags at Subbaraidupalem village during the course of the raid conducted by the Prohibition and Excise Inspector, Sub-Divisional Task Force Narasipatnam and on suspicion, they were detained and were interrogated by the Inspector and they disclosed their identity and also confessed that the bags in their possession contained ganja and the Inspector informed them of their right to be searched before a Magistrate or a Gazetted Officer and took them to the Judicial magistrate of First Class, Narasipatnam. The learned Magistrate got the bags opened in his presence and found dried ganja with flowering and fruits in all the bags. The bag held by A1 found containing 5 kgs, the bag held by A2 containing 5 kgs and the bag held by A3 containing 7 kgs of ganja. PW3 the Prohibition and Excise Inspector had taken samples from all the bags, packed them, sealed them, affixed identification labels duly signed by him, the Magistrate, the mediators and the accused, and he forwarded the mediators report and contraband articles along with the accused to PW4- the Prohibition and Excise Inspector, Narasiptnam, to take further action. PW4 registered a case in Cr.No. 647 to 649 of 1997-98 u/s 20(b(i) read with Section 8(c) of the Act and thereafter forwarded the property and the accused to the Court of Judicial Magistrate of First Class, Narasipatnam and the samples were sent to the Chemical Examiner, Visakhapatnam, and the report of the analyst showed that the samples sent were ganja belonging to the family of Cannabinaceae and after completing investigation, PW4 filed charge-sheet as against appellants-accused.

The prosecution examined PWs 1 to 4 and Exs. P1 to P7 and M.Os. 1 to 6 were marked. Ex.D1 also was marked.

On appreciation of evidence, the learned Judge came to the conclusion that the guilt of the accused had been proved beyond all reasonable doubt and accordingly, convicted them u/s 8(c) read with Section 20(b)(i) of the Act and sentenced them to undergo simple imprisonment for a period of six months and also to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for ten days. Hence, this criminal appeal.

Sri T.Nagarjuna Reddy, the learned counsel representing appellants made the following submissions:-

The learned counsel drawn the attention of this Court to Exs.P6 to P7 and also pointed out the date of seizure, dated 26.9.1998 and would contend that in the light of Exs.P6 and P7, it is clear that the samples of seized ganja were kept with the officials from 26.9.1998 to 5.10.1998, definitely for a period of nine days. There is absolutely no explanation forthcoming. PW4 does not speak anything about this aspect and hence, there is some suspicion whether the same samples had been sent for the analysis at all. The learned counsel also placed strong reliance on Ratnala Brundavanam v. State of A.P., 2004(2) ALT(Crl.) 700 (A.P.) in this regard. The learned counsel also would submit that PWs 3 and 4 are concerned with the investigation. PW1 is the Magistrate and there is no independent witness available on record and the only witness examined was PW2 and she was declared hostile. The other witness was not examined. In the light of this evidence available on record, especially, in view of the fact that the seizure is said to have been effected on 26.9.1998 and absolutely there is no explanation for ultimately despatching the same only on 5.10.1998, there is some doubt even in the version of the prosecution in this regard and hence, the same to be taken to have caused prejudice to the accused and hence, accused is entitled to benefit of doubt. The learned counsel had also taken this Court through the evidences of PWs 1 to 4 and also had pointed out the relevant portions in this regard.

Per contra, the learned Additional Public Prosecutor, Mohd. Osman Shaheed, made the following submissions:-

The learned Additional Public Prosecutor would contend that the ground of delay, which had occurred in between the date of seizure and Ex.P6 and P7 is being raised for the first time and there was no cross-examination even to this effect. The learned Additional Public Prosecutor also placed strong reliance on Central Bureau of Investigation Vs. V.K. Sehgal and another, and would contend that since this ground was not raised and was left unchallenged, the appellants need not be permitted to raise such ground in this appeal for the first time, especially in the absence of even certain suggestions to PWs 3 and 4 in this regard. The learned Additional Public Prosecutor also would contend that PW1 is a responsible Judicial Officer and his evidence cannot be disbelieved. The mere fact that the independent panch witness PW2 was declared hostile would not alter the situation in any way. The learned Additional Public Prosecutor also had taken this Court through the evidence of PWs 3 and 4 in this regard.

Heard both the learned counsel.

PW1 is the Judicial Magistrate of First Class, Narasipatnam, who had deposed that on 2.6.1998, at 6.30 a.m., he received a report from the Prohibition and Excise Inspector, Narasipatnam, to permit the search of three gunny bags produced before him along with three persons. Ex.P1 is the requisition given by the Excise Inspector and after obtaining his permission, the Excise Inspector got three gunny bags in his presence through the three persons produced before him-cum-accused and he found that the three bags were filled with ganja. Two mediators were also present at the time of search and their names are M. Chilakamma, examined as PW2 and another M. Maridamma, not examined PW1 also deposed that on questioning them, they had disclosed their identity and the ganja was weighed in his presence and this witness also deposed about the weight of the ganja in the respective ganja bags. The Inspector of Excise took samples and seized the entire ganja. A mediators report was drafted in his presence. Ex.P2 is the mediators report and he attested the same. Ex.P3 is the proceedings prepared by him the Inspector of Excise also affixed the slips containing his signature on the three gunny bags as well as sample packets. M.Os. 1 to 3 are the gunny bags and M.Os. 4 to 6 are the sample packets. In Ex.P2 mediators report, the mediators also signed in his presence. A1 signed the mediators report. A2 and A3 affixed their thumb marks on the mediators report stating that they received mediators report. The search and seizure were conducted in his presence. In cross-examination, this witness deposed that Ex.D1 is the Xerox copy of Ex.P2 mediators report, which contains his signature and date. This witness also further deposed that he prepared Ex.P3 proceedings at the time of search and seizure by the Inspector of Excise at his residence and he does not remember in how many N.D.P.S. cases of Narasipatnam, he gave evidence, he might have given evidence in three or four cases, but he cannot exactly say whether they are five. In Ex.P3 proceedings prepared him, he had not obtained the signatures of the mediators and no doubt he denied the suggestion that such search and seizure were not conducted in his presence and he simply signed in the mediators report and other documents at the instance of Excise Officials.

PW2 deposed that she does not know the accused and she affixed her thumb marks on some documents in the Excise Station and she does not know the contents of those documents and she also affixed one thumb marks at the residence of the Magistrate and the Excise staff did not seize anything in her presence and no doubt this witness was declared hostile.

PW3 deposed about the details and also deposed about the drafting of the mediators report-Ex.P2 and this witness also deposed about the filing of requisition before the Magistrate seeking permission to conduct search in his presence. This witness further deposed that an Excise Constable drew the samples of 100 gms from each bag in duplicate, packed them and sealed them. M.Os. 1 to 3 are the gunny bags and M.Os. 4 to 6 are the sample packets. Subsequent thereto, he arrested accused for search and seizure and Ex.P4 was drafted at the residence of the Magistrate. Thereafter, he handed over the accused and the documents to the Prohibition and Excise Inspector, Narasimpatnam. This witness was cross-examined at length and no doubt he had denied the suggestions that there was no raid and there is no arrest of the accused with ganja.

PW4 had deposed about the registration of the case. Ex.P5 is the First Information Report (for short F.I.R.) and he forwarded the accused for remand to the Judicial Magistrate of First Class, Narasipatnam. Subsequently, he sent M.Os. 4 to 6 to the Chemical Examiner along with a letter of advice-Ex.P6 through the court. After receiving the analyst report-Ex.P7, he filed charge-sheet. In cross-examination this witness deposed that the form of F.I.R. was filed up by one of his staff members and all the forms were filled up at the same time. Five persons were shown as accused in the First Information Report. It is true that the names of A4 and A5 were added in the F.I.R. The copies of F.I.R. were prepared at the same time. The names of A4 and A5 are missing in the copy of F.I.R. furnished to the accused. He forwarded the samples to the Chemical Examiner, A.P., Hyderabad. No doubt he denied the suggestion that all these documents were fabricated at the Excise Station.

As already referred to supra, PW2 was declared hostile and the other independent witness was not examined. It is also not in controversy that the search and seizure is said to have been effected on 26.9.1998. A careful reading of Exs.P6 and P7, would disclose that though the seizure is said to have been effected on 26.9.1998, ultimately, the sample packets were forwarded only on 5.10.1998 and the date of analysis on Ex.P7 is shown as 7.10.1998. Submissions at length were made relating to the delay in despatching the samples and the non-explanation relating to the same. It is true that neither PW3 nor PW4 had deposed about this aspect. In Ratnala Brundavanam''s case (supra) this Court at para 6 observed as hereunder:

The issue that arises for consideration is whether the sample collected from the packet allegedly containing ganja is the same sample tested by the public analyst. Ex.P3 is the analyst report. By reading Ex.P3 report nothing could be known with regard to the specimen seal affixed to the sample. M02 is the packet allegedly containing ganja. PW3 collected sample of the contents of M02 packet. He does not speak of affixing the specimen seal to the sample packet. For better appreciation I may refer the evidence of PW3 in his own words and it is thus:

As per the instructions of PW1 a small quantity of ganja was taken from the 800 grams of ganja found in the paper packet contained in the polythene bag on the petrol tank for the purpose of serving as sample and placed on a paper and it was picketed. Likewise small quantities from I.D. liquor found in six polythene bags were taken for the purpose of serving as samples and placed in six sample bottles. The ganja sample packet and the I.D. liquor sample bottles were tied and sealed and identification slips were pasted on those samples. An occurrence report was drafted at the same place describing what all had happened. The accused was arrested and the property was seized.

It is nowhere stated by him that he affixed the specimen seal to the samples collected from M.O.2 packet allegedly containing ganja. Neither PW1 nor PW4 stated of affixing the specimen seal on the samples collected from the pocket allegedly containing ganja. The sample collected from the packet allegedly containing ganja came to be sent for analysis with considerable delay. The sample came to be collected on 25.10.1997. It was sent for analysis on 1.4.1998. There is no evidence on record that the sample was kept safely in the excise P.S. without giving any scope for tampering. Added to that PW4 admits in his cross-examination that the bag in which ganja has been produced before the Court at the time of trial was not the same bag, which he seized on 25.10.1997. For better appreciation I may reproduce the evidence of PW4 in his own words and it is thus:

The bag in which ganja has been produced in the Court at the time of the trial is a polythene bag, but it was not the same bag which was found in possession of the accused. After the seizure of the property, the contraband was kept in our station but consequently that was got tom due to nuisance by rats. Hence, ganja packet was placed in another polythene bag.

In view of the abnormal delay in sending the sample to the analyst and as the sample does not contain the specimen seal, there is no assurance that is the same sample which the public analyst tested. Therefore, the appellant/accused is entitled for benefit of doubt. When once the public analyst report is shrouded with suspicion, there is no alternative except acquit the appellant/accused.

The learned Additional Public Prosecutor no doubt advanced submissions distinguishing the above decision on facts. It is true that apart from the abnormal delay in sending the samples to the Analyst, it was also observed in the said decision that the sample does not contain the specimen seal.

In the present case, the evidence of PWs 1 to 4 is available in this regard. It is no doubt true that this was not raised as a specific ground nor there was cross- examination in this direction. The Investigating Officer had not deposed anything about this aspect. Reliance was placed on Central Bureau of Investigation''s case (supra), where the Apex Court while dealing with want of valid sanction for prosecution and absence or invalidity when once left unchallenged and the file had ended in conviction, effort to save the public servant from frivolous or vindictive or mala fide prosecution becomes meaningless if on trial he is in fact found guilty. The facts of this decision are clearly distinguishable.

Not only that PW2 declared was hostile, there is yet another anomaly traced from the evidence of PW4. PW4 in his cross-examination deposed that the names of A4 and A5 were added in F.I.R. and five persons were shown as accused tin the First Information Report. As can be seen from the record, the charge-sheet is filled as against A1 to A3. Be that as it may, in view of the fact that the independent witness PW2 had not supported the version of the prosecution and the other independent witness was not examined at all and also in view of the fact that the First Information Report initially specified five accused and also taking into consideration the total non-explanation on the part of the Investigation in sending the seized samples for a considerable time as in between 26.9.1998 to 5.10.1998, though this was not raised as a specific ground, it is the duty of the prosecution to establish the same in the absence of any independent evidence supporting the version of the prosecution. Hence, on the strength of the evidence of PWs 1,3 and 4 alone, the conviction recorded by the learned Judge cannot be sustained.

Accordingly, the conviction and sentence imposed on the appellants-accused are hereby set aside and the Criminal Appeal is allowed. It is needless to say that the appellants-accused are entitled to the refund of fine amount, if any, paid by them. The bail bonds shall stand cancelled.