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2008 DIGILAW 479 (AP)

Anikotti Joseph Binoy v. State of Andhra Pradesh

2008-07-09

GOPALA KRISHNA TAMADA

body2008
JUDGMENT: Appellants were tried as A-1 and A-2 by the learned I Additional Sessions Judge, Khammam in S.C.No.11 of 2007 for the offence punishable under Section 8(c) read with Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act'). Having considered the evidence of PWs.1 to 6 and Exs.P1 to P11 and M.Os.1 to 3, the learned Additional Sessions Judge found the appellants guilty of the said offence and accordingly convicted and sentenced them to undergo rigorous imprisonment for a period of ten years each and also to pay a fine of Rs.1,000/- each, in default to suffer simple imprisonment for a period of six months each. Assailing the said judgment dated 31-01-2008 this appeal has been preferred. 2. The substance of the charge is that on 29-03-2007 at about 11-00 A.M. at A.P. Genco check post, the appellants were found in possession of 90 Ganja packets weighing about 100 Kgs. while transporting the same by Mahendra Marshal Royal DX vehicle bearing No.KL.07 T.6375. 3. In brief, the case of the prosecution is that on 29-03-2007 during the course of check of the vehicles at A.P. Genco check post, the Sub Inspector of Police, Mothugudem, who was examined as PW-6 stopped the jeep bearing No.KL.07 T.6375 at 8-45 A.M. At the relevant point of time, both the appellants were in the jeep and first appellant was driving the vehicle. As PW-6 and his staff found some suspicious contents concealed inside the roof of the said jeep, he detained the appellants and telephoned the Mandal Revenue Officer, Chintoor, who was examined as PW-5. PW-5 immediately came to the spot and when questioned, the appellants informed that they are from Kerala and were transporting the Ganja packets from Orissa by concealing the same from the roof of the jeep. When removed, PWs.5 and 6 found 90 Ganja packets weighing about 100 Kgs., in three different sizes and thereupon seized the same in the presence of PWs.1, 3 and 4 under the cover of a panchanama, which was marked as Ex.P1. As 90 Ganja packets are in three different sizes, PW-6 collected three samples from each group i.e. one sample from 2 Kgs. Ganja packets one sample from 1 Kg. Ganja packets and another sample from 1/2 Kg. Ganja packets. As 90 Ganja packets are in three different sizes, PW-6 collected three samples from each group i.e. one sample from 2 Kgs. Ganja packets one sample from 1 Kg. Ganja packets and another sample from 1/2 Kg. Ganja packets. The detained appellants were arrested and a case in Crime No.13 of 2007 was registered and F.I.R. was issued to all the concerned. The F.I.R. was marked as Ex.P4. The samples so collected were sent to the Chemical Examiner for examination and after receipt of the report from the Examiner, which was marked as Ex.P5, charge sheet was filed against the appellants - A-1 and A-2. 4. Heard Sri C. Padmanabha Reddy, learned senior counsel appearing for the appellants and Sri C. Prahladha Reddy, learned Additional Public Prosecutor for the State. 5. Learned Senior Counsel, Sri C. Padmanabha Reddy, raised two very important questions with regard to the search and seizure by the Mandal Revenue Officer on the information of the Sub Inspector of Police and according to him there is absolutely no evidence to establish that either PW-5 or PW-6, officers, are empowered to hold search and seizure as provided for under Section 42 of the NDPS Act. The other legal point raised by the learned senior counsel is that there is no proof that the said sample i.e. 31/2 Kgs. sent to the chemical examiner for analysis, is commercial quantity and hence the trial Court erred in convicting the appellants for the offence punishable under Section 20(b) of the NDPS Act, as if they were in possession of more than 20 Kgs. of Ganja. 6. Per contra, learned Additional Public Prosecutor, Sri C. Prahladha Reddy, opposed the said submissions and has drawn my attention to the Notification issued by the Government of Andhra Pradesh in G.O.Ms.No.184, Revenue (E), dated 14-02-1986 and submitted that the Sub Inspector of Police, who was examined as PW-6, is a competent officer as he falls within the meaning of Section 42 of the NDPS Act. According to him, in the light of the said Notification issued in the said G.O., there cannot be any doubt about the competence of PW-6. Similarly the learned Additional Public Prosecutor tried to impress upon this Court stating that the fact that the entire 100 Kgs. of Ganja, divided into 90 packets of three different parts weighing 2 Kgs. packets, 1 Kg. packets and 1/2 Kg. Similarly the learned Additional Public Prosecutor tried to impress upon this Court stating that the fact that the entire 100 Kgs. of Ganja, divided into 90 packets of three different parts weighing 2 Kgs. packets, 1 Kg. packets and 1/2 Kg. packets and PWs.5 and 6 collected one sample from each category and sent the same to the Examiner, who in turn opined that it is Ganja and hence, the said search and seizure also is strictly in accordance with law. According to him, it is not required for the officials to send the entire quantity that was seized for the purpose of analysis. 7. In the light of the submissions made by both the learned counsel, it is necessary to refer Section 42 of the NDPS Act, which reads as follows--- "42. Power of entry, search, seizure and arrest without warrant or authorisation. (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) to the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para- military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any Narcotic Drug, or Psychotropic Substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset-" 8. From the said provision of law and the wording, which is used in the said provision of law, it is clear that only the officers, who are empowered either by general or special order of the Government, alone are competent to enter, search, seize and arrest without any warrant or authorization. 9. No doubt, the learned Additional Public Prosecutor has produced a copy of the Notification issued in G.O.Ms.No.184 dated 14-02-1986 to establish the fact that PW-6 is an empowered officer. But the question that falls for consideration before me is as to whether the Court can take judicial notice of the said G.O., as it is produced for the first time before this Court. In the trial Court during the course of examination, PW-6 has not stated anything about his competence. He has not stated that he is an officer empowered under Section 42 of the NDPS Act nor did the Assistant Public Prosecutor, who conducted trial elicited in the evidence to establish that PW-6 is an officer empowered under Section 42 of the NDPS Act. Similarly, the G.O., which is produced before this Court, for the first time, is not marked during the course of trial. No doubt, this aspect was not canvassed by the Assistant Public Prosecutor during the course of trial, but that cannot be a ground to come to the conclusion that the trial Court is justified in convicting the appellants. It is for the prosecution to prove beyond all reasonable doubt the guilt of the accused and in the absence of any proof that PW-6 is an officer empowered to conduct search or seizure at the relevant point of time, it is not safe to convict them. 10. Learned Senior Counsel has drawn my attention to the judgment of this Court in SINGARASU VENKAYAMMA v. STATE1, where similar circumstances arose and this Court holding that the said officer is not an empowered officer as provided for under Section 42 of the NDPS Act allowed the said appeal and acquitted the accused therein. 10. Learned Senior Counsel has drawn my attention to the judgment of this Court in SINGARASU VENKAYAMMA v. STATE1, where similar circumstances arose and this Court holding that the said officer is not an empowered officer as provided for under Section 42 of the NDPS Act allowed the said appeal and acquitted the accused therein. The relevant portion of the judgment is as under--- "According to this section, as far as State Government is concerned any officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department who is empowered by general or specific order of the State Government has the power of entry, search and seizure without warrant or authorization. This section further requires that power under Section 42 can be exercised by an authorized officer if he has reason to believe that an offence punishable under Chapter IV has been committed. In case of information received from some other source not being personal knowledge there is further rider that it must be reduced to writing. These safeguards in Section 42 are mandatory and the facts of the present case reveal that the search was conducted on the basis of information received by the Excise officials which was not reduced to writing, even the Inspector stated that he was not aware of the procedure to be followed under N.D.P.S. Act. Therefore, there has been a violation of Section 42. The prosecution also has not at any point of time stated that the Excise Inspector was an authorized Officer within the meaning of Section 42 of the Act. It is not sufficient to be an Inspector of Excise or an Officer of the government above a certain rank to have the powers of entry, search, seizure and arrest without warrant but it is necessary for such officials that they must have been authorized by the government either by a general order or by a special order. Neither in the statement of witnesses nor from the record of the case it has been shown that the witnesses who conducted the search, arrested the accused were authorized by the State Government in terms of Section 42 of the N.D.P.S. Act." 11. I am totally in agreement with the view taken by the learned Single Judge, but the situation here is altogether different. I am totally in agreement with the view taken by the learned Single Judge, but the situation here is altogether different. In that case nothing is mentioned about the existence of the G.O. empowering the officers like PW-6 to discharge the duties as provided for under Section 42 of the NDPS Act, whereas in the instant case the learned Additional Public Prosecutor produced a copy of the G.O., whereby the officers like PW-6 are empowered to enter, search, seize and arrest without warrant or authorisation. 12. Learned senior counsel has also drawn my attention to a judgment of the Supreme Court in ROY V.D. v. STATE OF KERALA2 to the very same effect. In that case also, their Lordships of the Supreme Court following the judgments of the Supreme Court in State of Punjab v. Baldev Singh - (1999) 6 SCC 172 and in State of Punjab v. Balbir Singh - (1994) 3 SCC 299 reiterated that the arrest, search and seizure by an officer not empowered or authorized, is in violation of Sections 41 and 42 of the NDPS Act and thus the entire proceedings are vitiated. 13. In all those cases relied upon by the learned senior counsel the fact is that it was not brought to the notice of the learned Judges about the existence of a Notification, empowering officers to discharge the duties under Section 42 of the NDPS Act. As stated supra, here it is altogether different and the learned Additional Public Prosecutor has drawn my attention, for the first time, about the existence of a Notification issued in G.O.Ms.No.184 dated 14-02-1986. Of-course, the Court can take judicial notice of certain facts and Section 57 of the Indian Evidence Act, 1872 (for short, 'Evidence Act') prescribes as to what are those facts, where the Court can take judicial notice. 14. The learned Additional Public Prosecutor tried to impress upon this Court stating that this is a Notification issued by the State of Andhra Pradesh and the same is being published in Andhra Pradesh Gazette and hence, the said fact can be taken note of. I am afraid that a contention of that sort cannot be countenanced. 14. The learned Additional Public Prosecutor tried to impress upon this Court stating that this is a Notification issued by the State of Andhra Pradesh and the same is being published in Andhra Pradesh Gazette and hence, the said fact can be taken note of. I am afraid that a contention of that sort cannot be countenanced. In this context, it may be relevant to refer to the judgment of this Court in STATE v. MUTHU GOUNDER, where a learned Single Judge has taken a view that a Government Notification in the Gazette should be proved by producing a copy of the said Notification and it cannot automatically be a fact falling under Section 57 of the Evidence Act to take note of. On this aspect it is apt to refer the relevant paragraph from the said judgment, which reads as follows-- -- "In Mathuradas v. State - AIR 1954 Nag 296, the question as to whether a Court is entitled to take judicial notice of a notification fixing the retail price of yarn under the Cotton Textile (Control) Order, 1948, published in the Madhya Pradesh Gazette, was referred for consideration to a Division Bench. It was argued on behalf of the State in that case that a notification published in a Gazette is a part of the law of the land and that under Section 57(1) of the Evidence Act, a Court is bound to take judicial notice thereof. The learned Judges made a reference to the term "law" defined in Article 13(1) (a) of the Constitution of India and to the term "existing law" in Article 366(10) of the Constitution of India and also to the term "Indian Law" defined in Section 3(29) of the General Clauses Act, 1897 and pointed out that even if the definition of "Indian Law" in the General Clauses Act is accepted as the definition of "law" in force in the territory of India, a notification cannot be said to be included within it. They answered the reference in the following terms: "We are of opinion that a Court is not entitled to take judicial notice of a notification published in the Gazette and that the fact of the publication of the notification has to be proved in the manner provided for in Section 78, Evidence Act." Hence, the contention of the learned Additional Public Prosecutor is hereby rejected. 15. 15. Having regard to the fact that a Notification is issued and the same can be proved as provided for under Section 78 of the Evidence Act, this Court can as well record evidence even at the appellate stage or remand the matter to the learned Additional Sessions Judge for recording of evidence to prove the existence of the said G.O. However, this Court is not inclined to do so, as the second point, which is going to be answered now, is in favour of the appellants. 16. The total quantity that was seized is 100 Kgs. of Ganja in 90 packets and the said Ganja is divided into three parts i.e. 2 Kgs., 1 Kg., and 1/2 Kg. To bring home the guilt of any accused person that he is in possession of more than 20 Kgs. of Ganja, which is a commercial quantity, it is necessary for the prosecution to prove that the accused is in possession of the said quantity of 20 Kgs. In the instant case, only 31/2 Kgs. of Ganja was sent to the chemical examiner, who in turn opined that the said 31/2 Kgs. is Ganja and absolutely there is no evidence that the appellants were found in possession of more than 20 Kgs. of Ganja to bring within the definition of Section 20(b) of the NDPS Act that they are in possession of commercial quantity. May be it is true that all 90 packets contain Ganja, but the same is not proved beyond preponderance of probabilities. In E. MICHEAL RAJ v. NARCOTIC CONTROL BUREAU, Their Lordships of the Supreme Court held that it is not the total weight of the substance required i.e. neutral substance, but the percentage of Narcotic drug content by weight is relevant. May be it is true that 100 Kgs. were seized but the quantity that was sent to the analyst for examination is only 31/2 Kgs. and the analyst opined that the said 31/2 Kgs. is Ganja. With that evidence it is not possible to come to the conclusion that the appellants were found in possession of 20 Kgs. and more, to bring home their guilt under Section 20(b)(ii)(C) of the NDPS Act, which mandates that a minimum sentence of 10 years shall be imposed. When it is taken as 31/2 Kgs. is Ganja. With that evidence it is not possible to come to the conclusion that the appellants were found in possession of 20 Kgs. and more, to bring home their guilt under Section 20(b)(ii)(C) of the NDPS Act, which mandates that a minimum sentence of 10 years shall be imposed. When it is taken as 31/2 Kgs. Ganja it is less than the commercial quantity and above the small quantity, which squarely falls under Section 20(b)(ii)(B) of the NDPS Act, where no minimum sentence is prescribed. 17. As the appellants were arrested as early as on 29-03-2007 and are in jail both during the course of trial and even during the pendency of the appeal, this Court is of the view that the said sentence is sufficient to meet the ends of justice. 18. In the result, the criminal appeal is allowed in part and the conviction and sentence of imprisonment for a period of ten years each imposed on appellants - A-1 and A-2 for the offence under Section 8(c) read with Section 20(b) of the NDPS Act is set aside, instead, they are convicted for the offence under Section 8(c) read with Section 29(b) (ii) (B) of the NDPS Act, and sentenced them to that of the period already undergone by them. Except the said modification, in all other respects, the criminal appeal stands dismissed. The appellants shall be set at liberty forthwith, if they are not required in any other case.