Research › Search › Judgment

Andhra High Court · body

2004 DIGILAW 456 (AP)

Ratnala Brundavanam v. State Of A. P.

2004-04-09

B.SUBHASHAN REDDY

body2004
B. SUBHASHAN REDDY, J. ( 1 ) THIS Criminal Appeal is directed against the judgment dated 23-11-2001 passed in S. C. No. 3 of 1999 on the file of Special Judge (Under NDPS Act) cum Additional District and Sessions judge, Srikakulam, by which the learned special Judge convicted accused Ratnala brundavanam for the offence under Section 20 (b) (i) read with Section 8 (c) of the narcotic Drugs and Psychotropic Substances act, 1985 (for short the Act ) and sentenced him to suffer rigorous imprisonment for one year and to pay a fine of Rs. 6,000/- in default to suffer rigorous imprisonment for six months. ( 2 ) THE appellant herein is the sole accused in S. C. No. 3/99. He was put on trial before the Special Judge (Under NDPS act) cum Additional District and Sessions judge, Srikakulam for the offence under section 20 (b) (i) read with Section 8 (c) of the Narcotic Drugs and Psychotropic substances Act, 1985. ( 3 ) THE prosecution case in brief is as follows: p. W. I K. V. N. S. Appa Rao was Sub- divisional Prohibition and Excise Officer; p. W. 2m. Subrahmanyam, P. W. 3. K. Y. Prasad and P. W. 4 K. Yesudasu were the Prohibition and Excise Inspectors in the year 1997. On 25-10-1997 at about 3. 30 a. m, P. W. I, P. W. 3 and P. W. 4 along with their staff were conducting route march on the road leading from Hundi to Bhavanapadu Village. While they were at Bhavanapadu road junction, they found the appellant/accused coming on a moped in the opposite direction i. e. , from Bhavanapadu. They intercepted the appellant/accused and found him carrying poleythene bag on petrol tank. They opened the poleythene bag and found one paper packet containing 800 gms of ganja leaves, flowers and buds and two poleythene covers each containing 10 litres of I. D, liquor. They also noticed two poleythene bags on the carrier of the moped, each containing two packets 15 litres of I. D. liquor each. P. W. 3 collected the samples of ganja and I. D. liquor and sealed them with identity slips. He drafted an occurrence report and effected arrest of the appellant/ accused and seized ganja and I. D. liquor under the cover of Ex. P. l occurrence report. P. W. 3 collected the samples of ganja and I. D. liquor and sealed them with identity slips. He drafted an occurrence report and effected arrest of the appellant/ accused and seized ganja and I. D. liquor under the cover of Ex. P. l occurrence report. P. W. 4 registered a case in P. R. No. 32 of 1997-98 under, Section 20 (b) of the Act and Section 8 (e) read with 7 (a) of A. P, prohibition Act, 1995 and issued Ex. P. 2 fir. He sent the sample of ganja and six sample bottles of I. D. liquor to the Regional prohibition and Excise Laboratory, visakhapatnam. As per the analyst report the sample contains stalks and fruits with tops having characteristic odour which belongs to the family of cannabina. Ex. P. 3 is the analyst report. After completing investigation, P. W. 2 laid two charge-sheets. One before the JFCM in respect of illicit distilled arrack and another before the special Judge for Trial of NDPS Act in respect of ganja. The learned Special judge for Trial of NDPS Act took the charge- sheet on file as S. C. No. 3/99. On hearing the prosecution and the accused, learned special Judge for Trial of NDPS Act framed a charge under Section 20 (B) (i) read with section 8 (c) of NDPS Act, read over and explained the same to the appellant/accused for which the appellant/accused pleaded not guilty and claimed to be tried. To bring home the guilt of the accused for the offences under Sections 20 (b) (i) read with section 8 (c) of NDPS Act, The prosecution examined P. Ws. l to 4 and marked Exs. P. l to P. 7 and MOs. l to 9. Neither ocular nor documentary evidence was adduced on behalf of the appellant/accused. Learned special Judge, on appreciation of evidence brought on record, found the appellant/ accused guilty for the offence under Section 20 (b) (i) read with 8 (c) of NDPS Act and convicted him accordingly and sentenced him to suffer rigorous imprisonment for one year and to pay a fine of Rs. 6,000/- in default to suffer rigorous imprisonment for six months. Assailing the judgment of conviction and sentence the accused has filed this Criminal Appeal. ( 4 ) LEARNED Counsel appearing for the appellant/accused contends that P. Ws. 6,000/- in default to suffer rigorous imprisonment for six months. Assailing the judgment of conviction and sentence the accused has filed this Criminal Appeal. ( 4 ) LEARNED Counsel appearing for the appellant/accused contends that P. Ws. l, 3 and 4 are the Excise officials and their version of not securing any independent witness for seizure of contraband from the possession of the appellant/accused does not inspire confidence and therefore no implicit reliance can be placed on them on their testimony. It is nextly submitted by: him that omission to seal the samples of the contents of the packet alleged to be ganja at the time of the seizure creates any amount of doubt with regard to sending of the same sample to the Forensic Science laboratory for examination and therefore no reliance can be placed on Ex. P. 3 analyst report. ( 5 ) LEARNED Additional Public Prosecutor submits that the evidence of P. Ws. l, 3 and 4 is cogent and convincing and there is no reason to discard their testimony. It is also submitted by him that P. Ws. l, 3 and 4 have categorically stated that they sealed the seized property at the spot and therefore it gives an assurance that the sample collected from the packet is the same sample tested by Forensic Science Laboratory. ( 6 ) 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. P. 3 report nothing could be known with regard to the specimen seal affixed to the sample. MO. 2 is the packet allegedly containing ganja. P. W. 3 collected sample of the contents of MO. 2 packet. He does not speak of affixing the specimen seal to the sample packet. For better appreciation I may refer the evidence of p. W. 3 in his own words and it is thus:"as per the instructions of P. W. 1 a small quantity of ganja was taken from the 800 grams of ganja found in the paper packet contained in the poleythene bag on the petrol tank for the purpose of serving as sample and placed on a paper and it was packetted. 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 MO. 2 packet allegedly containing ganja. Neither P. W. I nor P. W. 4 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 P. W. 4 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 P. W. 4 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 poleythene 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 torn due to nuisance by rats. Hence, ganja packet was placed in another poleythene 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 it 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 to acquit the appellant/accused. 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 to acquit the appellant/accused. ( 7 ) IN the result, this Criminal Appeal is allowed setting aside the judgment of conviction and sentence dated 23-11-2001 passed in S. C. No. 3 of 1999 on the file of special Judge (Under NDPS Act)-cum-Additional District and Sessions Judge, srikakulam.