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2004 DIGILAW 1002 (AP)

Harijana Muniswamy v. State Of A. P.

2004-09-14

P.S.NARAYANA

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( 1 ) HEARD Sri Venkateswara rao, learned Counsel representing the appellants provided by way of legal aid and the learned Additional Public Prosecutor. ( 2 ) LEARNED Counsel for the appellants would submit that the evidence of P. Ws. 1, 2 and 3 cannot be believed and hence, the prosecution was unable to establish the guilt of the accused. The learned Counsel also placed strong reliance on T. P, Razak alias Nagappan Razak v. State of Kerala, 1996 (2) ALT (Crl.) 208 (SC), and would contend that non-compliance of the mandatory provisions of Section 50 of the narcotic Drugs and Psychotropic Substances act, 1985 (hereinafter in short referred to the Act for the purpose of convenience) would definitely vitiate the proceedings and on that ground also, the appellants/accused are entitled for acquittal. ( 3 ) PER contra, learned Additional public Prosecutor would contend that, no doubt, the provisions relating to Section 50 of the Act are mandatory, in the present case, there is substantial compliance and hence, the findings are to be confirmed. ( 4 ) HEARD both the Counsel. ( 5 ) THE Inspector of Prohibition and excise, Kadapa filed charge-sheet against the appellants/a. 1 and A. 2 before the First additional District Magistrate, Kadappa in crime No. 140 of 2001 for the offence punishable under Section 8 (c) read with section 20 (b) (i) of the Act. ( 6 ) THE version of the prosecution is that on 9-1-2001 at about 9-30 a. m. , during the course of traffic control by the Sub inspector of Police, Chinnachowk police station along with the staff on the road that leads from Kadappa to Rajampet in his station s jurisdiction, appellants/a. 1 and A. 2 were found under suspicious circumstances in that area and they were detained and questioned about the contends in the bags in their possession and when the handbags were un-tied and inspected, they found dry loose ganja in them and the sub-Inspector of police produced the accused before the Mandal Revenue Officer, kadappa at 10. 30 a. m. and the Mandal revenue Officer after ascertaining the name and addresses of the accused, inspected the hand bags and found 2 kgs of dry ganja in it. After completion of the investigation, the police filed charge-sheet. ( 7 ) THE prosecution had examined p. Ws. l to 4 and Exs. 30 a. m. and the Mandal revenue Officer after ascertaining the name and addresses of the accused, inspected the hand bags and found 2 kgs of dry ganja in it. After completion of the investigation, the police filed charge-sheet. ( 7 ) THE prosecution had examined p. Ws. l to 4 and Exs. P. l to P. 4 and M. Os. l to 3 were marked. ( 8 ) THE learned Judge convicted the appellants/a. 1 and A. 2 and sentenced them to suffer rigorous imprisonment for a period three years and also sentenced to pay a fine of Rs. 1,000/- each, in default of payment of fine, to suffer simple imprisonment for one month. ( 9 ) P. W. I is the Mandal Revenue officer, Kaddapa, who deposed about the office superintendent drafting panchanama on his dictation in the presence of accused and Sub-Inspector of police, ( 10 ) P. W. 2 is the Sub-Inspector of police, Proddutur Rural Police Station, who had deposed that he found the accused holding three bags, M. Os. l to 3, and he enquired about their identity and about the contents of the bags and he produced the accused before the Mandal Revenue officer for searching the bags. ( 11 ) P. W. 3 deposed about the registration of the crime under the Act and issuing Ex. P. 2, F. I. R. ( 12 ) P. W. 4 deposed about the analyst report, Ex. P. 4. Except this evidence, there is no other evidence, there is no other evidence available on record. ( 13 ) STRONG reliance was placed on State of Punjab v. Balbir Singh, (1994) 3 SCC 299 and Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, 1994 (6) SCC 326. ( 14 ) IN T. P. Razak s case (supra) the apex Court held that having regard to the fact that the F. I. R, and Seizure mahazar do not mention about the appellant having been asked before the search was conducted as to whether he would like to be produced before a Gazetted Officer or a magistrate and the further fact that P. W. 1, the other independent witness, also does not state about this, we are of the view that the prosecution has failed to establish that there was compliance with the provisions of Section 50 of the Act before conducting the search of the appellant. In view of the non-compliance with the mandatory provisions of Section 50 of the Act, no reliance can be placed on the alleged search of the person of the appellant and the alleged recovery of four small packets containing 370 mg. of brown sugar from his possession. The conviction and the sentence imposed on the appellant cannot, therefore, be upheld and has to be set aside. ( 15 ) THE prosecution was unable to establish that there was compliance with the provisions of Section 50 of the Act in the present matter also and in the absence of compliance of mandatory provisions relating to search in accordance with section 50 of the Act, definitely the proceedings are vitiated and hence, the conviction and sentence imposed as against the accused cannot be sustained and accordingly conviction and sentence are hereby set aside. The criminal appeal is allowed.