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2020 DIGILAW 217 (AP)

Kunchala Ankamma v. State of A. P.

2020-03-10

C.PRAVEEN KUMAR

body2020
JUDGMENT : 1. The sole accused in Sessions Case No. 25 of 208 before the Special Judge for NDPS Cases-cum-Additional District & Sessions Judge, Ongole, preferred the present appeal assailing his conviction and sentence in the said Sessions case. The Appellant herein was tried for an offence punishable under Section 20(b)(ii)(B) r/w. 8(c) of Narcotic Drugs and Psychotropic Substances Act [‘NDPS Act’]. By its Judgment, dated 06.08.2009, the learned Special Judge for NDPS Cases-cum-Additional District & Sessions Judge, Ongole, found the accused guilty of the said charge and sentenced him to under rigorous imprisonment for a period of two years and also to pay fine of Rs. 2,000/-in default to suffer simple imprisonment for a period of one month. Challenging the same, the present Criminal Appeal came to be filed under Section 374(2) of Cr.P.C. 2.The facts, in issue, are as under:- i.On 19.03.2008 at about 5.00 P.M., on the instructions of the Prohibition and Excise Commissioner, PW3 along with Prohibition & Excise Inspector, Enforcement Wing and staff were patrolling at road junction from S.Konda to Kandukur road and the other road leading to drivers colony. They found a person carrying a gunny bag. On suspicion, the said person was stopped and on enquiry, he stated that the gunny bag contains ganja. Immediately, PW3 sent one G. Ramesh, Police Constable to bring mediators. Sometime, thereafter, the said Ramesh brought PW1 and PW2 as mediators. In the presence of mediators, the said person was inquired as to whether he intends to be searched in the presence of Gazette Officer or PW3 himself, to which accused stated that there is no necessity to be searched before the Gazette Officer. Pursuant thereto, a Notice under Ex.P2 was issued to the accused. On giving reply under Ex.P3 by the accused, PW3 along with PW1 and PW2 [mediators] searched the gunny bag [MO2] and found ganja leaves, flowers and stems in the bag. They weighed the same and found it to be 6 kilograms. PW3 is said to have collected 100 grams of the sample ganja from the bag and affixed seals and paper slips and thereafter prepared a panchanama in the presence of PW1 and PW2 under Ex.P1. Thereafter, he handed over the accused, Ex.P1 and property to a Centry of P&E Station, S.Konda. ii.Basing on the same, PW4 registered a case in P.R.No.130 of 2007-08 and issued Ex.P5-FIR. Thereafter, he handed over the accused, Ex.P1 and property to a Centry of P&E Station, S.Konda. ii.Basing on the same, PW4 registered a case in P.R.No.130 of 2007-08 and issued Ex.P5-FIR. After obtaining analysis report, P&E Inspector [PW5] filed a charge-sheet and the same was taken on file as S.C. No. 25 of 2008. iii.On appearance, copies of documents as required under Section 207 Cr.P.C., came to be furnished. Basing on the material available on record, a charge, as referred to above came to be framed, read over and explained to the accused, to which, he pleaded not guilty and claimed to be tried. 3. To substantiate its case, the prosecution examined PW1 to PW5 and got marked Ex.P1 to Ex.P6 and got marked MO. 1 and MO.2. Out of five witnesses examined by the prosecution, PW2 did not support the prosecution and was treated hostile. After completing the prosecution evidence, the accused was examined under section 313 Cr.P.C with reference to the incriminating material appearing against him in the evidence of prosecution witnesses, to which, he denied, but did not adduce any oral or documentary evidence in support of his plea. 4. Believing the evidence of PW1 and PW3, the learned Judge convicted the accused as referred to above. Challenging the same, the sole accused preferred the present appeal. 5. Sri. N. Ravi Prasad, learned counsel for the appellant would contend that, the evidence of PW1 by itself may not be sufficient to convict the accused, more so, when PW2, another mediator did not support the prosecution case. He further pleads that PW3 who is said to have conducted the search failed to identify the accused in the court and as such, there is any amount of doubt with regard to his presence at the time of arrest and seizure of ganja. 6. The same is opposed by the learned Public Prosecutor contending that it is not the quantity of the evidence that is material, but only the quality that matters, in cases of this nature. 7. The point that arises for consideration is “whether the prosecution has proved its case against the accused beyond reasonable doubt? 8. 6. The same is opposed by the learned Public Prosecutor contending that it is not the quantity of the evidence that is material, but only the quality that matters, in cases of this nature. 7. The point that arises for consideration is “whether the prosecution has proved its case against the accused beyond reasonable doubt? 8. One of the arguments, which was advanced is with regard to non-compliance of Section 50 of the NDPS Act, but, as seen from the evidence of PW1 and PW3, on 19.03.2008 at about 5.00 P.M., they found accused with a gunny bag. On suspicion, the excise officials intercepted him and when questioned, he disclosed that ganja was carried by him in the said gunny bag. That being so, question of non-compliance of Section 50 of NDPS Act would not arise, as nothing was seized from the body of the accused. 9. The next argument urged by the learned Counsel for the appellant is that, the evidence of PW1 if read along with PW2 creates any amount of suspicion with regard to their presence, weighing and the seizure. PW2 though acted as a mediator and signed on proceedings, but he did not support the prosecution case and he was declared hostile by the prosecution. All the suggestions given by the Public Prosecutor with regard to his earlier version was denied by him. Therefore, it is to be seen whether the evidence of PW1 can be accepted. 10. As stated earlier, on 19.03.2008 at 5.00 P.M., PW1 along with PW2 were on evening walk at Drivers pet. They noticed a jeep stationed on the road. A Constable called them and requested them to act as mediators. On persuasion by the Constable, both of them agreed to act as mediators. At that time, by the side of the jeep, the accused was standing with a gunny bag and the excise officials were also present there. The excise officials asked the accused whether the gunny bag be opened in the presence of the government employee, to which, the accused answered in negative. The Constable opened the bag, which contained leaves and flowers of cannabis plant. That was the first time both of them saw the ganja. The excise officials collected 100 grams of ganja as sample and thereafter the rest was seized in accordance with the procedure established under the Act. The Constable opened the bag, which contained leaves and flowers of cannabis plant. That was the first time both of them saw the ganja. The excise officials collected 100 grams of ganja as sample and thereafter the rest was seized in accordance with the procedure established under the Act. In-fact, seizure and the manner in which the remaining ganja packed is not questioned by the counsel for the appellant. Though, PW1 was cross-examined at length, nothing useful came to be elicited to discredit his testimony. The only thing which the counsel for the accused would elicit in the cross-examination is that, he was doing a cell phone business without any license. It was further elicited that there are number of tea stalls in and around the said place. Having regard to the above, the counsel would contend that, when number of tea shops and other shops are present at the place of incident, there is no necessity for the police to call PW1 and PW2 to act as mediators. But, the evidence of PW3 shows that, as soon as the accused was intercepted, he asked LW5 to bring mediators and thereafter PW1 and PW2 who were there were requested to act as mediators. Therefore, though PW2 did not support the prosecution case, but the evidence of PW1 can be relied upon to show that there was recovery of ganja from the accused. Nothing has been suggested to PW1 to show that he has been set up by the prosecution or that he has any enmity or ill-will towards the accused. 11. Having regard to the above, I am of the view that the conviction imposed by the Trial Court for the offence punishable under Section 20(b)(ii)(B) r/w. 8(c) of Narcotic Drugs and Psychotropic Substances Act warrants no interference. However, taking into consideration the fact that the incident is of the year 2008 and the appellant was aged about 55 years then and in view of the representation that he was in jail for sometime, the sentence of imprisonment shall stands reduced to the period already undergone while confirming the fine passed by the Trial Court. 12. Accordingly, the Criminal Appeal is disposed off. 13. Consequently, miscellaneous petitions, if any, pending shall stand closed.