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Andhra High Court · body

2011 DIGILAW 737 (AP)

Shivakumar Biswas v. State of A. P.

2011-09-07

R.KANTHA RAO

body2011
JUDGMENT 1. This criminal appeal is filed against the judgment dated 19.01.2006passed by the Special Judge for Trial of Cases under NDPS Act, 1985 cum I Additional Sessions Judge, Khammam in S.C.No.71 of 2002 convicting the appellants for the offences under Section 8(c) of the NDPS Act, 1985 sentencing each of them to undergo rigorous imprisonment for a period of one year and six months and to pay fine of Rs.1,000/-. 2. I have heard Sri C.Prathap Reddy, learned counsel appearing for the appellants and the learned Additional Public Prosecutor representing the State. 3. It was the case of the prosecution that on 28.06.2002, PW.6 M.Jithender Reddy, Sub Inspector of Police, Bhadrachalam on reliable information while proceeding with his staff for the purpose of checking vehicles near Sai Junior College, Bhadrachalam, at about 9.45 hours PW.6 stopped RTC bus bearing No. AP 10 Z 3056 of Bhadrachalam Depot. The bus was proceeding to Bhadrachalam from Jeediguppa. He conducted search of the bus and found the appellants 1 to 4, who were possessing ganja in suitcase, leather bag and two shopping bags. The appellants were interrogated in the presence of Pws.4 and 5 and thereafter, they were informed about the search in the presence of the Gazetted Officer, but they did not exercise their option. Thereafter, the containers of the contraband articles were seized, samples were taken from the contraband articles and it was found that the bags contained ganja. Subsequently, the samples were sent to the chemical analyst and the report of the analyst disclosed that the samples were of ganja. 4. In the course of the trial before the learned Special Judge, the prosecution in order to establish its case, examined PWs.1 to 6 and marked Exs.P.1 to P.8 and MOs 1 to 4. The appellants did not choose to examine any defence witnesses. 5. The learned Special Judge upon considering the entire evidence on record, convicted the appellants for the offence punishable under Section 20(b) and 8(c) of the NDPS Act and sentenced to punishment as mentioned above. 6. Now the point for determination in this appeal is: Whether the order of conviction and sentence passed by the learned Special Judge is sustainable? 7. The learned counsel appsearing for the appellants submitted that the alleged search and seizure was vitiated for not complying with the provisions of Section 42 and 50 of the NDPS Act. 6. Now the point for determination in this appeal is: Whether the order of conviction and sentence passed by the learned Special Judge is sustainable? 7. The learned counsel appsearing for the appellants submitted that the alleged search and seizure was vitiated for not complying with the provisions of Section 42 and 50 of the NDPS Act. He also submitted that there is no evidence to show that the suitcase and boxes containing ganja were being transported by the appellants and the trial Court erroneously recorded a finding to the effect that those containers belong to the appellants. 8. As rightly contended by the learned Additional Public Prosecutor, since it is not the case of the prosecution that the appellants were personally searched the provisions of Section 50 of the NDPS Act need not be complied with, the search and seizure cannot be said to be vitiated for non-compliance of Section 50 of the Act. However, in so far as the compliance of Section 42 of NDPS Act is concerned, PW.6 investigating officer stated in his chief-examination that on reliable information he went near Sai Junior College for the purpose of checking vehicles. In the course of cross-examination also he stated that he informed the reliable information received to the superior officer orally, but he did not prepare any documents in that connection. 9. Section 42 of the NDPS Act reads as follows: 42 : Power of entry, search, seizure and arrest without warrant or authorization. In the course of cross-examination also he stated that he informed the reliable information received to the superior officer orally, but he did not prepare any documents in that connection. 9. Section 42 of the NDPS Act reads as follows: 42 : Power of entry, search, seizure and arrest without warrant or authorization. (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of 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 V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and (d) detain and search, and. if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act : Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.] 10. In RAJENDER SINGH v STATE OF HARYANA (2011(8) SCALE)the Supreme Court held as follows: “The dispatch of wireless message does not amount to compliance with Section 18 and 42(2) of the Act, the information should ordinarily be taken down in writing and it shall be sent to the superior officer forthwith. PW.6 admitted in his cross examination that he had not prepared any record about the secret information received by him in writing and had not sent any such information to the higher authorities. Therefore, it cannot be said that the mandatory provisions of Section 42(2) of the NDPS Act are complied with.” 11. In another decision relied upon by the learned counsel appearing for the appellants in STATE OF KARNATAKA v DONDUSA NAMASA BADDI (2011(1) ALD (CRL)285 (SC))the Supreme Court held as follows: “Conducting search without recording information received and forwarding it to superior officer, the requirement of Section 42(2) of the Act was complied with not sufficient, when it is not the case of the prosecution that sufficient time was not available to record information in writing and send it to superior officer.” 12. In the instant case also, as could be seen from the evidence of PW.6, investigating officer prior to proceeding to make search, he had prior information about the occurrence and only basing on the prior information he was checking the vehicles near Sai Junior College, Bhadrachalam. He admitted in his evidence before the trial Court that though he had information he did not record the same in writing and did not inform the same to the immediate superior officer. He admitted in his evidence before the trial Court that though he had information he did not record the same in writing and did not inform the same to the immediate superior officer. Therefore, the search in this case is clearly vitiated for non-compliance of mandatory provisions of Section 42 of the NDPS Act. 13. Further, the evidence let in by the prosecution is also not satisfactory regarding the aspect that the suitcase and bags containing the contraband articles belong to the appellants and they were being transported by the appellants. The evidence of the prosecution witnesses is at variance on this aspect. PW.1 stated in his evidence that all the appellants were keeping the respective containers on their thighs, but this fact was not spoken to by the remaining witnesses. Pw.6 also deposed in the same fashion. PW.2 another witness stated that he saw A1 to A4 getting down from the bus along with their luggage. Whereas, PW.3-conductor of the RTC bus stated in his chief-examination that the police constable conducted search of the bus and brought one suitcase and three bags from out of the bus. Thus there is any amount of variance in the evidence of the above mentioned witnesses about the manner of the appellants possessing the containers of the contraband articles. 14. PW.4 one of the mediators did not support the prosecution case and he was treated hostile by the prosecution. Pw.5 stated in his evidence that he was called by the S.I of Police to Sai Junior College, Bhadrachalam where he found A1 to A4 holding suitcase and three bags. The evidence, therefore, that the suitcase and three bags were being transported by A1 to A4 is also not convincing. 15. For all the above mentioned reasons, I am of the view that the trial Court had fallen into error in convicting the appellants for the offence under Section 20(b) and 8(c) of the NDPS Act. The conviction and sentence passed by the trial Court is liable to be set aside. 16. Accordingly, the appeal is allowed setting aside the conviction and sentence passed by the Special Judge for Trial of Cases under NDPS Act, 1985 cum I Additional Sessions Judge, Khammam in S.C.No.71 of 2002. The fine amount, if any, paid by the appellants shall be refunded to them.