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Andhra High Court · body

2004 DIGILAW 1330 (AP)

Boina Chinnam Naidu v. State Of A. P.

2004-11-09

P.S.NARAYANA

body2004
( 1 ) ACCUSED in Sessions Case No. 28 of 1999 on the file of the Special Judge for Narcotic Drugs and Psychotropic Substances Act-cum-Metropolitan Sessions Judge, Vishakapatnam, aggrieved by the judgment dated 6-8-1999 of the learned Judge, had preferred the present criminal appeal. ( 2 ) THE case of the prosecution is that on 27. 4. 1999 at about 9. 30 P. M, PW. 3, Prohibition and Excise Inspector, Paderu received telephone information from an unknown person about the transportation of Ganja at Sarsapadu village of Hukumpet Mandal. After receipt of the said information he had communicated the same to his superior officers. The next day on 28. 4. 1999, P. W. 3 picked up mediators, proceeded to Sarsapadu village at 7. 00 A. M. along with his staff and mediators. On the way, at a distance of one furlong from Sarsapadu village at 9. 15 A. M. , the riding party found the accused sitting on a gunny bag by the side of the accused. On seeking the riding party, the accused tried to run away, but the staff surrounded him and detained him PW. 3 questioned about the contents of the said bag and the accused revealed that all the bags contain ganja and he was waiting for a van to transport them to some other place. There upon PW. 3 issued Ex. P3 search notice to the accused, informed him of his right to be searched in the presence of a Gazetted Officer or a Magistrate and after receipt of search notice, the accused gave his willingness in writing to be searched by the Mandal Revenue Officer-Mandal Executive Magistrate, Hukumpet. PW. 3 had taken possession of the contraband articles under cover of mediators report prepared at the scene of offence and thereafter produced the accused along with the contraband articles before PW. 2, the Mandal Executive Magistrate, Hukumpet. PW. 3 issued a written requisition to PW. 2 conducted search of the bags with the assistance of Excise staff in the presence of the mediators and found three of the five bags contained Ganja and the remaining two bags contained Ganja seeds. PW. 2 got the contraband articles weighed through Excise staff. The ganja seeds in each two bags weighed at 50 kgs. PW. 2 conducted search of the bags with the assistance of Excise staff in the presence of the mediators and found three of the five bags contained Ganja and the remaining two bags contained Ganja seeds. PW. 2 got the contraband articles weighed through Excise staff. The ganja seeds in each two bags weighed at 50 kgs. PW. 3 had taken two samples of 50 gms each from each bag, packed them, sealed them and affixed identification labels and thereafter arrested the accused. The search and seizure of contraband articles and arrest of accused was made under cover of mediators report drafted at the office of Mandal Executive Magistrate, Hukumpet. After returning to the Excise station at 6. 00 P. M. , PW. 3 registered a case against the accused in Crime No. 104 of 1999 under Section 8 (c) read with 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter in short referred to as the Act for the purpose of convenience ). PW. 3 also sent the contraband property and the accused to the Mandal Executive Magistrate and he had sent the samples to the Chemical Examiner at Vishakapatnam through Court for analysis. The report of the analyst revealed that there of the samples are ganja, which would fall under Narcotic drug and the remaining two samples are ganja seeds, which are fertile. It is also stated that this accused was also an accused in S. C. No. 92 of 1992 in Crime No. 5/91-92 of Prohibition and Excise Station, Paderu and he was convicted in the said case and as such he is a habitual offender under the Act. ( 3 ) THE learned trial Judge framed a charge under Section 8 (c) read with 20 (b) (i) of the Act and the accused pleaded not guilty. Hence, the prosecution examined PWs. 1 to 4, market Exs. P1 to P9 and M. Os. 1 to P5. The learned Judge on appreciation of the evidence available on record came to a conclusion that the guilt of the accused was proved beyond reasonable doubt and was sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs. 10,000/-, in default to suffer rigorous imprisonment for a period of six months. 1 to P5. The learned Judge on appreciation of the evidence available on record came to a conclusion that the guilt of the accused was proved beyond reasonable doubt and was sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs. 10,000/-, in default to suffer rigorous imprisonment for a period of six months. ( 4 ) SRI C. Praveen Kumar, the learned counsel representing the appellant/accused submitted that there is no independent evidence available on record and on the strength of the evidence of PW. 3, conviction cannot be sustained. The learned counsel would also contend that the mandatory provisions of the Act had not been complied with and hence, the very search and seizure had not been proved by the prosecution. The learned counsel also had taken this Court through the evidence of PW. 3 and would contend that at any rate the prosecution had not been able to establish the possession of the accused over the gunny bags and hence, the findings recorded by the learned Judge cannot be sustained. The learned counsel also drawn the attention of this Court to Section 55 and 57 of the Act and would contend that the non compliance thereof would vitiate the prosecution and conviction and sentences are liable to be set aside on the said ground alone. The learned counsel placed reliance on Ved Singh And Others v. State of Rajasthan 2002 CRL. LAW Journal 1463 Dhima Ram And Others v. State of Rajasthan 2002 CRL. LAW Journal 2348, Selvam v. State of Madras 2003 CRL. LAW Journal, 4656, Dharmedndra Kumar Parwar v. State of Madhya Pradesh 2004 (3) Crimes 500 , Gangaram Rama Gudkar and Others v. State of Maharashtra 2002 CRL. LAW Journal, 2578, Radhey Shyam v. State of Uttar Pradesh 2003 CRL:law Journal 165, Avatar Singh v. State of Punjab 2002 (7) SCC 419 , And Spdt and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Others AIR 1980 SC 52 . LAW Journal, 2578, Radhey Shyam v. State of Uttar Pradesh 2003 CRL:law Journal 165, Avatar Singh v. State of Punjab 2002 (7) SCC 419 , And Spdt and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Others AIR 1980 SC 52 . ( 5 ) PER contra, the learned Additional Public Prosecutor had taken this Court through the evidence available on record and also the findings recorded by the learned Judge and would contend that this is a case where the ganja bags were found in a public place and the accused was sitting on these bags and hence he was in possession of the bags seized on the fateful day. The learned Additional Public Prosecutor also had drawn the attention of this Court that inasmuch as the seizure was effected from a public place, i. e. , a road, Section 43 of the Act alone is applicable and the rigour of Section 42 of the Act cannot be applied to a case of this nature. The learned Additional Public Prosecutor placed strong reliance on the decision of the Apex Court in State of Pubjab v. Baldeve Singh (1999) 6 SCC 172 . Strong reliance was also placed on the evidence of PW. 2-Mandal Revenue Officer, Hukumpet apart from the evidence of PW. 3, who is the investigating Officer. The learned Additional Public Prosecutor would submit that merely because PW. 1 and PW. 4 had not supported the version of the prosecution and were declared hostile, automatically acquittal need not be recorded. ( 6 ) HEARD the counsel at length. PW. 3, the investigating Officer deposed that on prior information received by him over phone through an unknown person on the previous day, he picked up mediators on 28. 4. 1999 and thereafter the raid party of 110 members of Prohibition and Excise Department including Assistant Commissioner and Superintendent of Excise started at 7. 00 A. M. and reached Sarsapadu village at 9. 15. A. M. , and they found accused sitting on a bag under a jack fruit tree and that the other bags were lying by his side. The paid party surrounded him and when questioned by PW. 3, the accused stated that the bags contain ganja and he was waiting for a van to transport the ganja. Thereafter PW. 15. A. M. , and they found accused sitting on a bag under a jack fruit tree and that the other bags were lying by his side. The paid party surrounded him and when questioned by PW. 3, the accused stated that the bags contain ganja and he was waiting for a van to transport the ganja. Thereafter PW. 3 apprised him of his right to be searched in the presence of a Gazetted Officer or a Magistrate and with his consent he was taken along with contraband articles to P. W. 2-Mandal Executive Magistrate, Hukumpet. On receiving written requisition from PW. 3, PW. 2 searched the bags with the assistance of excise staff in the presence of mediators and the search revealed that three of the bags contained ganja and the remaining two bags contained ganja seeds. PW. 3 had taken the samples from each bag, packed them and sealed them and affixed identification slips and later arrested the accused and seized the contraband under the cover of mediators report in the presence of PW. 2. PW. 2 no doubt corroborated the evidence of PW. 3. ( 7 ) P. W. 2 deposed that he has been working as Mandal Revenue Officer, Hukumpet since 9. 6. 1998 and he is a Gazetted Officer, the Prohibited and Excise Inspector-P. W. 3 and his staff brought the accused along with five bags. They also brought two mediators. The mediators are P. W. 1 and 2. The Inspector of Excise told him that he apprehended the accused along with four bags and requested him to conduct search of the bags and issued a written requisition. PW. 2 further deposed that he introduced himself as a Gazetted Officer to the accused and on searching the bags with the assistance of Excise staff he found three bags containing ganja and the remaining two bags containing ganja seeds. This witness also deposed about the weighing of the ganja and ganja seeds and taking the samples, packing them, sealing them by affixing identification labels. M. Os. 1 to 3 gunny bags containing ganja an M. Os. 4 and 5 are urea bags containing ganja and M. Os. 4 and 5 are urea bags containing seeds and M. Os. 6 to 15 are sample packets and Ex. P2 is the mediators report. This witness also deposed about the arrest of the accused under cover of mediators report. 1 to 3 gunny bags containing ganja an M. Os. 4 and 5 are urea bags containing ganja and M. Os. 4 and 5 are urea bags containing seeds and M. Os. 6 to 15 are sample packets and Ex. P2 is the mediators report. This witness also deposed about the arrest of the accused under cover of mediators report. This witness in his cross-examination deposed that it is not true to suggest that by the time the Excise police came to him, they have already prepared Ex. P2 mediators report. This witness further deposed that it is not true to suggest that prior to coming to him, the samples, were already taken. He cannot say from which particular bag which sample was drawn. Ganja will be available in large quantities in Sarsapadu village and in Hukumpet area. This witness also denied the suggestion that the search and seizure was not conducted in his presence and he was giving false evidence. This witness also deposed that the accused is a Sarpanch of Sarsapadu village and he was extending cooperation to them in implementing the programmes of the Government. This witness also deposed that he has not received the First information Report copy in this case, which is sent to the nearest Executive Magistrate of Sarsapadu village. ( 8 ) P. W. 1 in his chief examination had supported the version of the prosecution. But however, in the cross examination the specifically deposed that he does not know the contends of Ex. P2, the mediators report drafted at Hukumpet, and this witness was declared hostile and he was cross examined by the prosecution wherein this witness deposed that it is not true to suggest that he participated in the raid along with Excise staff and the events mentioned in Ex. P1 and P2 mediators report, took place in his presence and it is not true to suggest that he stated before the Excise Inspector as in Ex. P8, and it is not true to suggest that he is giving false evidence to help the accused. ( 9 ) PW. 4 is the jeep driver who deposed that the accused was not apprehended in his presence by the Inspector of Excise and he was not present at the time of seizure of any contraband article. Exs. P1 and P2 were prepared by him in Excise Station and the events mentioned in Ex. ( 9 ) PW. 4 is the jeep driver who deposed that the accused was not apprehended in his presence by the Inspector of Excise and he was not present at the time of seizure of any contraband article. Exs. P1 and P2 were prepared by him in Excise Station and the events mentioned in Ex. P1 and P2 did not take place in his presence. This witness was also declared hostile. The relevant portion of Ex. P1 reads as follows: then the P and E Inspector served a search notice under Section 50 of the N. D. P. S. Act informing him that he is having right under Section 50 of N. D. P. S. Act, 1985 to get the ganja in his possession to be checked by a Gazetted Officer or a Magistrate. Then according to his willingness, the said person was taken into custody along with the ganja bags there, in our presence acting as mediators and started to go towards Hukumpet for the purpose of checking either by a Gazetted Officer or a Magistrate. As the above happenings are true, this mediators report is drafted at the scene of offence. ( 10 ) AS can be seen from the material available on record except the evidence of P. W. 3 no other independent evidence is available to prove the search and seizure. Submissions at length were made relating were made relating to the aspect of possession. In Supdt. and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Others (supra) the Apex Court at Paras-13 to 15 while dealing with the concept of possession held as follows: possession is a polymorphous term which may have different meanings in different contexts. It is impossible to work out a completely logical and precise definition of possession uniformity applicable to all situations in the contexts of all statutes. Dias and Hughes in their book on Jurisprudence say that if a topic ever suffered from too much theorizing it is that of possession. Much of this difficulty and confusion is (as pointed out in Salmonds jurisprudence, 12th Edition, 1966) caused by the fact that possession is not purely a legal concept. Possession, implies a right and a fact; the right to enjoy annexed to the right of properly and the fact of the real intention. It involves power of control and intent to control. Possession, implies a right and a fact; the right to enjoy annexed to the right of properly and the fact of the real intention. It involves power of control and intent to control. ( 11 ) ACCORDING to Pollock and Wright when a person is in such a relation to a thing that, so far as regards the thing, he can assume, exercise or resume manual control of it at pleasure, and so far as regards other persons, the thing is under the protection of his personal presence, or in or on a house or land occupied by him or in any receptacle belonging to him and under his control, he is in physical possession of the thing. ( 12 ) WHITE recognizing that possession is not a purely legal concept but also a matter of fact; Salmond (12th Edition, pages 52) describes possession, in fact, as a relationship between a person and a thing. According to the learned author the test for determining whether a person is in possession of anything is whether he is in general control of it. ( 13 ) IN Avatar Singh v. State of Punjab (7 supra) the Apex Court at para-6 held as follows: possession is the core ingredient to be established before the accused in the instant case are subjected to the punishment under Section 15. If the accused are found to be in possession of poppy straw which is a narcotic drug within the meaning of clause (xiv) of Section 2, it is for them to account for such possession satisfactorily; if not, the presumption under section 54 comes into play. We need not go into the aspect whether the possession must be conscious possession. Perhaps taking a cue from the decision of this Court in inder Sin v. State of Punjab (1973) 2 SCC 372 : 1973 SCC (Cri)813 arising under the Opium Act, the learned trial Judge charged the accused of having conscious possession of poppy husk. Assuming that poppy husk comes within the expression poppy straw, the question, however, remains whether the prosecution satisfactorily proved the fact that the accused were in possession of poppy husk. Accepting the evidence of PW. 4, the Head constable, it is seen that appellant 3 (Accused 4) was driving the vehicle loaded with bags of poppy husk. Assuming that poppy husk comes within the expression poppy straw, the question, however, remains whether the prosecution satisfactorily proved the fact that the accused were in possession of poppy husk. Accepting the evidence of PW. 4, the Head constable, it is seen that appellant 3 (Accused 4) was driving the vehicle loaded with bags of poppy husk. Appellants 1 and 2 (Accused 1 and 2) were sitting on the bags placed in the truck. As soon as the vehicle was stopped by ASI (PW. 2), one person sitting in the cabin by the side of the driver and another person sitting in the back of the truck fled. No investigation has been directed to ascertain the role played by each of the accused land the nexus between the accused and the offending goods. The word possession no doubt has different shades of meaning and it is quite elastic in its connotation. Possession and ownership need not always go together but the minimum requisite element, which has to be satisfied, is custody or control over the goods. Can it be said, on the basis of the evidence available on record, that the three appellants one of whom was driving the vehicle and the other two sitting on the bags, were having such custody or control? It is difficult to reach such conclusion beyond reasonable doubt. It transpires from the evidence that the appellants were not the only occupants of the vehicle. One of the persons who was sitting in the cabin and another person sitting at the back of the truck made themselves scarce after seeing the police and the prosecution could not establish their identity. It is quite probable that one of them could be the custodian of the goods whether or not he was the proprietor. The persons who were merely sitting on the bags, in the absence of proof of anything more, cannot be presumed to be in possession of the goods For instance, if they are labourers engaged merely for loading and unloading purposes land there is nothing to show that the goods were at least in their temporary custody, conviction under Section 15 may not be warranted. At best, they may be abettors, but, there is no such charge here. At best, they may be abettors, but, there is no such charge here. True, their silence and failure to explain the circumstances in which they were traveling in the vehicle at the odd hours, is one strong circumstance that can be put against them. A case of drawing presumption under Section 14 of the Evidence Act could perhaps be made out then to prove the possession of the accused, but the fact remains that in the course of examination under Section 313 Criminal Procedure Code not even a questions was asked that they were the persons in possession of poppy husk placed in the vehicle. The only question put to them was that as per the prosecution evidence, they were sitting on the bags of poppy husk. Strangely enough, even the driver was questioned on the same lines. The object of examination under Section 313, it is well known, is to afford an opportunity to the accused to explain the circumstances appearing in the evidence against him. It is unfortunate that no question was asked about the possession of goods. Having regard to the charge of which the appellants were accused, the failure to elicit their answer on such a crucial aspect as possession, is quite significant. In this state of things, it is not proper to raise a presumption under Section 114 of the Evidence Act nor is it safe to conclude that the prosecution established beyond reasonable doubt that the appellants were in possession of poppy husk which was being carried by the vehicle. The High Court resorted to the presumption under Section 35 which relates to culpable state of mind, without considering the aspect of possession. The trial court invoked the presumption under Section 54 of the Act without addressing itself to the question of possession. The approach of both the courts is erroneous in law. Both the courts rested their conclusion on the fact that the accused failed to give satisfactory explanation for traveling in the vehicle containing poppy husk at an odd hour. But the other relevant aspects pointed out above were neither adverted to nor taken into account by the trial court and the High Court. Non application of mind to the material facts has thus vitiated the judgment under appeal. But the other relevant aspects pointed out above were neither adverted to nor taken into account by the trial court and the High Court. Non application of mind to the material facts has thus vitiated the judgment under appeal. ( 14 ) ON the strength of these decisions it was submitted that mere fact that the accused was said to have been sitting on a bag at the relevant point of time would not conclusively prove or establish his possession of these bags. Apart from this aspect of the matter, on a careful analysis of the evidence of PW. 3, PW. 3 had not deposed anything relating to the compliance of Section 55 of the Act. Section 55 of the Act reads as under: sectiom 55 POLICE TO TAKE CHARGE OF ARTICLES SEIZED AND DELIVERED: an officer in charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and allow such officer who may accompany such articles to the police station, or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples to taken shall also be sealed with seal of the officer-in-charge of the police station. ( 15 ) P. W. 1 simply deposed that he registered a case against the accused and he sent the samples for analysis along with letter of advise. He sent the accused for remand, he made G. D. entry about receiving the information by him and informing the same to the superior officers and he recorded the statement of LW. 5 and sent copy to the Court and he received a report of the analyst and filed the charge sheet and the rough sketch was also prepared by him. It is no doubt true that the non-compliance of Section 55 of the Act had neither been made a ground of attack before the learned trial Judge nor the same had been mentioned as a ground in the grounds of appeal. It is no doubt true that the non-compliance of Section 55 of the Act had neither been made a ground of attack before the learned trial Judge nor the same had been mentioned as a ground in the grounds of appeal. It is needless to say that it is for the prosecution to prove the case beyond all reasonable doubt and accused need not specifically cross examine all these aspects which may ultimately cause prejudice to the accused filing up the gaps of the prosecution. The learned counsel for the appellant placed strong reliance on VCD Singh and Others v. State of Rajasthan, Dhim Ram and Others v. State of Rajasthan, Selvam v. State of Madras, Dharmendra Kumar Parwar v. State of Madhya Pradesh (1 to 4 supra) to substantiate his contention that even non-compliance of the provisions of Section 55 of the Act would definitely vitiate the prosecution episode. Apart from this aspect of the matter, reliance was also placed on Gangaram Rama Gudkar And Others v. State of Maharashtra, and Radhey Shyam v. State of Uttar Pradesh for the preposition that normally conviction cannot be sustained on the strength of the evidence of the Investigating Officer alone in the absence of any other independent evidence. It is no doubt true that no hard and fast rule can be laid down in this regard but at the same time, it would be always unsafe to rely upon the evidence of the investigating Officer in the absence of any other independent evidence to convict the accused normally. ( 16 ) VIEWED from any angle, in the light of the fact that P. W. 1 and PW. 4 were declared hostile and also the evidence of PW. 3 does not disclose the compliance of Section 55 of the Act, this Court is of the considered opinion that prejudice is caused to the appellant/accused and hence, the benefit of doubt to go in favour of appellant/accused. Accordingly, the conviction and sentence recorded by the learned Judge are hereby set aside and the appeal is allowed. The bail bonds of the accused shall stand cancelled. It is needless to say that the appellant/accused is entitled to the refund of fine amount, if any, paid by him.