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2020 DIGILAW 229 (AP)

Gummalla Singaram v. State of A. P.

2020-03-11

C.PRAVEEN KUMAR

body2020
JUDGMENT : Heard both sides and perused the material on record. 2. Assailing the conviction and sentence, dated 06.07.2009, in N.D.P.S. S.C.No.4 of 2009 on the file of the learned Special Sessions Judge for Trial of the Cases under the Narcotic Drugs and Psychotropic Substances Act, 1985 – cum – I Additional Sessions Judge, East Godavari District, Rajahmundry, wherein the sole accused was convicted under Section 235 (2) Cr.P.C. for the offence under Section 8(c) read with 20(b)(ii)(B) of the N.D.P.S. Act and sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.5,000/-in default, to suffer simple imprisonment for a period of one month, the present appeal came to be filed. 3. The facts, as disclosed from the evidence of the prosecution witnesses, are as under: On 03.12.2008, at about 1:30 P.M., P.W.5 received credible information about transportation of ganja. After securing the mediators – P.W.1 and one P.Bhavani (L.W.6), he along with the Sub Inspector of Police, mediators and staff proceeded to Rajavommangi Bus Stop. At about 2:00 P.M., the raid party noticed a person carrying a bag. On seeing him, he was apprehended and interrogated. After ascertaining his name and the articles contained in the bag, which he revealed it as ganja, he was asked as to whether he intends to be examined, as contemplated under Section 50 of the N.D.P.S. Act, and notice to that effect was served on him. A mediators’ report was drafted with regard to the events that took place at that place. At about 3:30 P.M., the accused was produced before the Tahsildar, Rajavommangi along with ganja. The Tahsildar verified the bag in the presence of mediators and found it containing ganja. The Tahsildar is said to have sent P.W.2 for weighing the ganja and found it to be 7 kgs 500 grams. Out of it, 200 grams was lifted as a sample. Identity slips were affixed to the said sample packets, which contains the signatures of the Tahsildar and the mediators. Basing on the above proceedings, P.W.4 registered a case against the accused as Crime No.48 of 2008 for the offence punishable under Section 8(c) read with 20(b)(1) of the N.D.P.S. Act. and sent him to remand. Thereafter, P.W.5 proceeded to the scene of offence and prepared a rough sketch, which is placed on record as Ex.P-5. Basing on the above proceedings, P.W.4 registered a case against the accused as Crime No.48 of 2008 for the offence punishable under Section 8(c) read with 20(b)(1) of the N.D.P.S. Act. and sent him to remand. Thereafter, P.W.5 proceeded to the scene of offence and prepared a rough sketch, which is placed on record as Ex.P-5. The samples seized were sent for analysis along with a letter of advice, which is marked as Ex.P-6. The report received from R.F.S.L. is marked as Ex.P-7. After receipt of credible information about transportation of the ganja, he informed the same to the Deputy Superintendent of Police over telephone and sent a report to the Superintendent of Police, East Godavari. Copy of the report is marked as Ex.P-8. After completing the investigation, a charge sheet came to be filed. 4. The learned Special Sessions Judge for Trial of Cases under N.D.P.S. Act – cum – I Additional Sessions Judge, Rajahmundry took cognizance for the offence punishable under Section 8(c) read with 20(b)(ii)(B) of the N.D.P.S. Act against the accused and the same came to be numbered as N.D.P.S. S.C.No.4 of 2009. 5. On appearance of the accused, copies of the documents were supplied to him under Section 207 Cr.P.C. and on hearing both sides, a charge under Section 8(c) read with 20(b)(ii)(B) of the N.D.P.S. Act was framed, read over and explained to the accused in Telugu for which, he pleaded not guilty and claimed to be tried. 6 To substantiate its case, the prosecution examined P.Ws.1 to 6 and got marked Exs.P-1 to P-8 and exhibited M.Os.1 and 2. 7. After completion of the entire prosecution evidence, the accused was examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against him in the evidence of the prosecution witnesses to which he denied. No oral or documentary evidence was adduced on behalf of the accused. 8. Basing on the evidence of P.Ws.1 to 4, the learned Sessions Judge convicted the accused, as stated supra. Challenging the same, the present appeal came to be filed by the accused. 9. Sri T.S.N.Murthy, learned counsel for the appellant/accused, would contend that there are clear indications to show that a false case has been foisted against the accused. 8. Basing on the evidence of P.Ws.1 to 4, the learned Sessions Judge convicted the accused, as stated supra. Challenging the same, the present appeal came to be filed by the accused. 9. Sri T.S.N.Murthy, learned counsel for the appellant/accused, would contend that there are clear indications to show that a false case has been foisted against the accused. According to him, if the incident took place as suggested by the witnesses, there should not be any discrepancies and inconsistencies in the evidence of the witnesses who were examined to speak about the incident. 10. The same is opposed by Sri Dushyanth Reddy, learned Additional Public Prosecutor representing the State of Andhra Pradesh. He would contend that the discrepancies pointed out by the learned counsel for the accused do not go to the root of the matter. According to him, a reading of the evidence of the witnesses as a whole would show that the accused must have been found in the bus stand and after chase, he was apprehended on the other side of the road. Therefore, he submits that the argument that there was a change in the scene of offence may not be correct. 11. The point that arises for consideration is: “Whether the prosecution is able to prove the guilt of the accused for the offence punishable under Section 8(c) read with 20(b)(ii)(B) of the N.D.P.S. Act beyond all reasonable doubt?” 12. POINT:- P.W.1 was working as Village Revenue Officer, Rajavommangi at the time of incident. According to him, on 03.12.2008, at about 2:00 P.M., himself and one Bhavani (L.W.6) were taken to Rajavommangi Bus Stand by Circle Inspector of Police. On seeing the raid party, a person aged 25 years carrying a bag started running. The police apprehended him, enquired about his identity and also questioned about the contents in the bag, who disclosed about the contraband. A mediators’ report was drafted in that connection at that place and the accused is said to have subscribed his thumb impression, which is placed on record as Ex.P-1. After completing the legal formalities, he was taken to the office of the Mandal Executive Magistrate, Rajavommangi. The ganja said to have been seized was weighed by P.W.2 and it was found to be 7½ kgs. However, in the cross examination, P.W.1 admits that the accused was arrested in the bus stand only. After completing the legal formalities, he was taken to the office of the Mandal Executive Magistrate, Rajavommangi. The ganja said to have been seized was weighed by P.W.2 and it was found to be 7½ kgs. However, in the cross examination, P.W.1 admits that the accused was arrested in the bus stand only. He further admits that on all the papers which he has signed, the thumb impression of the accused was obtained and his name was also quoted, but he also admits that in M.O.1, the name of the accused was not mentioned. Anyway, what is elicited from the evidence of P.W.1 is that the accused was apprehended in the bus stand. 13. Similar is the evidence of P.W.2. but in the cross examination, he admits that no written requisition was received by him from the Tahsildar to come and weigh the ganja. 14. P.W.3 is a resident of Thantikonda Village and running an auto. According to him, on the date of incident, at 2:00 P.M., the accused was moving towards the bus stand with a bag and the police apprehended him. He went there and the accused is said to have revealed that the bag contains ganja and that he has also given his name. In the cross examination, it has been elicited that there is no RTC bus stand at Rajavommangi but there is a bus stop. He further states that there is no separate auto stand in Rajavommangi. However, he admits that several people gathered when the police caught the accused at the auto stand. From the evidence of this witness, it is clear that though in the chief examination, he speaks about arresting the accused at the bus stand but in the cross examination, he admits that the accused was apprehended at the auto stand, though there is no reference to auto stand in the sketch. 15. Coming to the evidence of P.W.4, who is the then Sub Inspector of Police, he, in his evidence in chief, deposed about the mediatiors’ report, registration of crime etc., but in the cross examination, it has been elicited that he arrested the accused at the bus stop and at the time of arrest, there were no other persons at the bus stop. He also admits that no identification slip containing his signature was placed on M.O.2. 16. He also admits that no identification slip containing his signature was placed on M.O.2. 16. Coming to the evidence of P.W.5 – Investigating Officer, he, in his cross examination, states that he did not give any written requisition to the mediators though he made a General Diary entry when he started from the police station on the date of the offence, but did not file a copy of the same in the Court. Further, the notice vide Ex.P-4, in compliance of Section 50 of N.D.P.S. Act, came to be issued after arrest. It was further elicited in the cross examination that as per Ex.P-5, the scene of offence is opposite to the bus stop intervened by a road. 17. From the evidence of all these witnesses, it is very much clear that the incident in question took place at the bus stop/bus stand in Rajavommangi. This bus stop is exactly opposite to Rajavommangi Police Station. As seen from the rough sketch of the scene of offence, which is placed on record as Ex.P-5, a road is running from Yeleswaram towards Narsipatnam between the bus stand/bus stop where the accused is said to have been arrested and the scene of offence. No explanation is forthcoming from the prosecution as to the discrepancy with regard to the said aspect. It is not the case of the prosecution that on seeing the police party, the accused crossed over the road and later, he was apprehended at the scene shown in the sketch. 18. Apart from that, it is also to be noted that according to P.W.5, the information was received by him at 1:30 P.M. and immediately thereafter, he secured the mediators and proceeded to the bus stop by which time, the accused was already present and then, he tried to run away, which appears to be improbable. It is also to be noted from the evidence of P.W.1 that signature of accused was not taken on M.O.1 and the signature of the mediators is not there on M.O.2. bag with ganja. Having regard to all the circumstances, a doubt arises as to whether really the accused was involved in the commission of the offence and also as to whether really the incident took place or whether it was invented for statistical purpose. Hence, this Court is of the opinion that benefit of doubt can be given to the accused. 19. Having regard to all the circumstances, a doubt arises as to whether really the accused was involved in the commission of the offence and also as to whether really the incident took place or whether it was invented for statistical purpose. Hence, this Court is of the opinion that benefit of doubt can be given to the accused. 19. In the result, the conviction and sentence recorded by the learned Special Sessions Judge for Trial of the Cases under the Narcotic Drugs and Psychotropic Substances Act, 1985 – cum – I Additional Sessions Judge, East Godavari District, Rajahmundry vide judgment, dated 06.07.2009, in N.D.P.S. S.C.No.4 of 2009 against the appellant/accused for the offence punishable under Section 8(c) read with 20(b)(ii)(B) of the N.D.P.S. Act are set aside. The bail bonds of the appellant/accused shall stand cancelled. Fine amount, if any, paid by the appellant/accused shall be refunded to him. 20. Accordingly, the Criminal Appeal is allowed. Miscellaneous petitions pending, if any, in this Criminal Appeal shall stand closed.