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2023 DIGILAW 1390 (AP)

Jagadeeshan v. State of Andhra Pradesh

2023-10-13

A.V.RAVINDRA BABU

body2023
JUDGMENT A.V.RAVINDRA BABU, J. - The judgment, dtd. 19/1/2009 in Sessions Case No.3 of 2008, on the file of Special Judge for NDPS Cases-cum-I Additional District and Sessions Judge, Ongole ("Special Judge" for short), is under challenge in the present appeal filed by the unsuccessful Accused, who faced trial for the charge under Sec. 20(b)(ii)(B. r/w 8(c. of the Narcotic Drugs and Psychotropic Substance Act, 1985 ("NDPS Act" for short. and was convicted and sentenced to undergo rigorous imprisonment for 7 1/2 years and to pay fine of Rs.500.00 in default to suffer simple imprisonment for one month. 2. The parties to this Criminal Appeal will hereinafter be referred to as described before the trial Court for the sake of convenience. 3. The State, represented by the Prohibition and Excise Inspector, Ongole, filed a charge sheet in PR.No.150/2007-08 of Prohibition & Excise Station, Ongole, alleging the offence under Sec. 20(b)(ii)(B. r/w 8(c. of the NDPS Act. 4. The case of the prosecution, in brief, is that on 7/12/2007 L.W.8-K. Venkateswara Rao, Prohibition and Excise S.I. along with L.W.3-Ch. Harinarayana, P.C.1040" L.W.4-Sk.Md. Rafi, P&EC.228 L.W.5-P. Narapureddy, P.C.1988; L.W.6-M. Rajasekhara Reddy, P.C.1534 and L.W.7-T. Ratnakumar, P.C.1634, Prohibition & Excise Station, Ongole, conducted vehicular checking for Prohibition & Excise offences at the scene of offence. At about 2-30 a.m., they stopped one APSRTC Bus bearing No.A.P.28-Z-1850 going to Tirupati. They requested the passengers to act as mediators, but they refused to do so. Then, they requested L.W.1-Ravilla Krishnama Naidu and L.W.2- Chinthamakula Sivaiah, the drivers of the said APSRTC bus to act as mediators and they accepted to act as mediators. Then the Prohibition & Excise S.I. served search proceedings under Sec. 165 of the Code of Criminal Procedure ("Cr.P.C." for short. on L.W.1. During search of the bus, they noticed the accused in the last seat of bus in a disturbed mood. He was in possession of one cream colour suitcase at his feet along with one zip bag. On questioning, the accused stated that they belonged to him and it contains Ganja. Then L.W.8 informed to L.W.9-M. Bhaskara Rao, P&E Inspector. Thereafter, L.W.9 reached to the scene of offence. They informed the accused about Sec. 50 of the NDPS Act procedure in writing, for which the accused refused the same. On verification of suitcase and bag, they found wet Ganja with leaves, buds, seeds, etc. Then L.W.8 informed to L.W.9-M. Bhaskara Rao, P&E Inspector. Thereafter, L.W.9 reached to the scene of offence. They informed the accused about Sec. 50 of the NDPS Act procedure in writing, for which the accused refused the same. On verification of suitcase and bag, they found wet Ganja with leaves, buds, seeds, etc. They also found one ticket with the accused. The accused revealed his identity particulars and confessed the commission of offence. L.W.9 got weighed the Ganja in suitcase which is of 8.500 kgs. and the zip bag contains Ganja of 4.500 kgs. L.W.9 took 50 grams of Ganja from the suitcase and zip bag as samples, kept the remaining Ganja in the very same suitcase and zip bag. He seized the same along with bus ticket. He arrested the accused under the cover of mahazarnama. He registered the mediators report as a case in PR.No.150/2007-08 under Sec. 8(c. r/w 20(b)(i. of NDPS Act. He forwarded the accused for judicial custody. Samples were sent to analyst and the analyst opined in Rc.No.1920/2007, dtd. 19/12/2007 that the samples are of Ganja. Hence, the charge sheet. 5. The learned Special Judge, Ongole, took cognizance of the case under the above provisions of law. After appearance of the accused, copies of case documents were furnished to him as required under Sec. 207 of the Cr.P.C. Then, a charge under Sec. 20(b(ii)(B. r/w 8(c. of N.D.P.S Act was framed and explained to the accused, for which he pleaded not guilty and claimed to be tried. 6. During the course of trial, on behalf of the prosecution, P.W.1 to P.W.5 were examined and Ex.P.1 to Ex.P.9 and M.O.1 to M.O.3 were marked. After closure of the evidence of prosecution, the accused was examined under Sec. 313 of Cr.P.C. with reference to the incriminating circumstances appearing in the evidence let in by the prosecution, for which he denied the same and stated that he is an innocent and he has no defence witnesses. 7. The learned Special Judge, Ongole, on hearing both sides and on considering the oral as well as the documentary evidence, found the accused guilty of the charge under Sec. 20(b(ii)(B. r/w 8(c. of the NDPS Act and convicted him. 7. The learned Special Judge, Ongole, on hearing both sides and on considering the oral as well as the documentary evidence, found the accused guilty of the charge under Sec. 20(b(ii)(B. r/w 8(c. of the NDPS Act and convicted him. After questioning him about the quantum of sentence, he was sentenced to undergo rigorous imprisonment for 7 1/2 years and to pay fine of Rs.500.00 in default to suffer simple imprisonment for one month. Felt aggrieved of the same, the unsuccessful accused filed the present Criminal Appeal. 8. Now, in deciding this Criminal Appeal, in the light of the contentions, the points for determination are as follows: (1) Whether the compliance of Ss. 42, 43, 50 and 57 of the NDPS Act is necessary and if so whether they are complied? (2) Whether the prosecution has proved that the accused was found in possession of 13 Kgs. of Ganja in the suitcase and zip bag in the manner as alleged? (3) Whether the prosecution has proved the charge under Sec. 20(b(ii)(B. r/w 8(c. of the NDPS Act beyond reasonable doubt? (4) Whether the judgment of the learned Special Judge, Ongole, dtd. 19/1/2009 in S.C.No.3 of 2008, is sustainable under law and facts and whether there are any grounds to interfere with the same? POINT NOS.1 TO 4:- 9. Sri Kurra Srinivas, learned counsel for the appellant, would contend that P.W.1 turned hostile to the case of the prosecution. P.W.2, another driver, supported the case of the prosecution. Police party did not secure the presence of the officials, who used to work at tollgate and did not join any passengers, who were the natural witness. Deliberately, the police party picked up P.W.1 and P.W.2, who were the drivers of the APSRTC bus, as independent witnesses. However, P.W.1 turned hostile to the case of the prosecution. If his evidence is considered, entire recovery is nothing but false. Due to fear or otherwise, P.W.2 obliged to depose in favour of the prosecution. However, according to his answers in cross examination, the Ganja bags were seized in the middle of the bus from the luggage point, as such, conscious possession of Ganja cannot be attributed to the accused. None of the witnesses have spoken about the conscious possession of Ganja. The learned Special Judge at all did not consider this important aspect. There is a violation of Sec. 50 of the NDPS Act. None of the witnesses have spoken about the conscious possession of Ganja. The learned Special Judge at all did not consider this important aspect. There is a violation of Sec. 50 of the NDPS Act. The recovery of Ganja is nothing but farce as the police party effected the recovery without joining any gazetted officer. According to the case of the prosecution, one of the excise officials was secured to act as gazetted officer for which the accused gave consent that bags can be searched even before the mediators without the presence of the gazetted officer. It is not at all proper compliance of Sec. 50 of the NDPS Act. Further, when the bus was searched, compliance of Sec. 42 of the Act is necessary and it is not at all complied. Further Ss. 43 and 57 of the Act is also not complied. The entire case of the prosecution is based upon the interested testimony of excise officials and evidence of P.W.2 is of no use, as recovery was said to be effected in the middle of the bus from luggage point, as such, there is nothing to convict the accused and ignoring everything available on record, the learned Special Judge erred in convicting the accused, as such, the Criminal Appeal is liable to be allowed. 10. The learned counsel for the appellant would rely upon the decision of the Delhi High Court in Kamruddin vs. State (NCT of Delhi)., 2022 SCC OnLine Del 3761. With the above said contentions, he contends that the Criminal Appeal is liable to be allowed. 11. Sri Y. Jagadeeswara Rao, learned counsel, representing the learned Public Prosecutor, would contend that as the entire Ganja was seized from the suitcase and zip bag of the accused, there is no need to comply Sec. 50 of the NDPS Act. There are several decisions of the Hon'ble Supreme Court in this regard to that effect. The decision cited by the learned counsel for the appellant has no application to the present case on hand. P.W.2 supported the case of the prosecution. His evidence is consistent with the evidence of P.W.3 to P.W.5- excise officials. There are several decisions of the Hon'ble Supreme Court in this regard to that effect. The decision cited by the learned counsel for the appellant has no application to the present case on hand. P.W.2 supported the case of the prosecution. His evidence is consistent with the evidence of P.W.3 to P.W.5- excise officials. According to the case of the prosecution as narrated in mahazar and the oral testimony of P.W.2 to P.W.5, the accused was sitting in the last row of the bus on the right side and the contraband was found in front of his legs. The answers spoken by P.W.2 in cross examination that the Ganja was recovered from the middle of the bus from the luggage seat is nothing but a slip of tongue. Even otherwise, P.W.3 to P.W.5 were not cross examined as to where from the Ganja was seized. The evidence of P.W.3 to P.W.5 is consistent with mahazar. The answers spoken by P.W.2 in cross examination is contrary to the record. In the absence of any challenge to the testimony of P.W.3 to P.W.5, the recovery of Ganja is to be believed from the front side of the accused. The learned Special Judge rightly appreciated the entire evidence on record. Ss. 42, 43 and 57 of the NDPS Act have no application to the case on hand. The learned Special Judge rightly appreciated the evidence on record, as such, the Criminal Appeal is liable to be dismissed. 12. Turning to the evidence of P.W.1, one of the drivers of the subject matter of APSRTC bus bearing No.A.P.28Z 1850, he deposed that they were plying the bus from Vijayawada to Tirupati. By the time of search by the Excise Police, he was driving the bus. By the time the bus reached Tangutur toll plaza, the Excise officials stopped the bus and obtained signatures of him and other driver. They took the signatures on white paper only. The accused was not arrested by the Excise Police. P.W.1 did not support the case of the prosecution as regards the recovery of Ganja. The prosecution got declared him as hostile and during cross examination, he admitted that the search proceedings contain his signatures and the search proceedings contain the printed matter. He denied that he is deposing false in support of the accused. 13. P.W.1 did not support the case of the prosecution as regards the recovery of Ganja. The prosecution got declared him as hostile and during cross examination, he admitted that the search proceedings contain his signatures and the search proceedings contain the printed matter. He denied that he is deposing false in support of the accused. 13. Coming to the evidence of P.W.2, another driver of APSRTC bearing No.A.P.28Z 1850, his evidence is that on 6/12/2007 he and P.W.1 were the drivers of RTC bus. They were driving the bus from Tirupati to Vijayawada. It was returning from Vijayawada to Tirupati on the intervening night of 6/7/12/2007. It reached Tangutur toll plaza by 3-30 a.m. Then the Excise officials in order to search the bus woke up him and served search proceedings on P.W.1. Thereafter, they all entered into bus and searched to detect Excise offences. The Excise police found one suitcase and one bag at the feet of one person sitting on the last seat of the bus. He cannot identity him and the luggage. The Excise officials questioned the said person about the contents of the bags, but he did not give any reply. They opened the bag and suitcase and found Ganja. They drew samples from the suitcase and bag, packed and sealed and affixed identity slips. The said person was arrested and Ganja was seized under mahazarnama in his presence and in the presence of P.W.1. Police also seized ticket. 14. Turning to the evidence of P.W.3, the Excise Police, he deposed that during intervening night of 6/7/12/2007, Excise S.I. L.W.8 picked up him and other staff and they proceeded to Tangutur tollgate. At 2-30 a.m., one RTC bus bearing No.A.P.28Z 1850 came there from Vijayawada side and halted at toll plaza for payment of tollgate fee. Then he and Excise SIL.W.8 served search proceedings-Ex.P.3 on P.W.1. Then they entered into the bus and searched the same. In the last seat they found the accused sitting in six seater. The accused on seeing Excise Officials perturbed. On suspicion they looked at his feet and found one zip bag and suitcase. M.O.1 is yellow colour suitcase and M.O.2 is black colour zip bag. The accused revealed that the bags contained Ganja. The Excise SI tried to secure panchayathdars from the passengers, but none come forward. The accused on seeing Excise Officials perturbed. On suspicion they looked at his feet and found one zip bag and suitcase. M.O.1 is yellow colour suitcase and M.O.2 is black colour zip bag. The accused revealed that the bags contained Ganja. The Excise SI tried to secure panchayathdars from the passengers, but none come forward. Hence, he requested P.W.1 and P.W.2 to act as panchayathdars, for which they agreed. The S.I. passed intimation to Excise Inspector-L.W.9, who rushed to the scene. After arrival of Inspector, he questioned the accused and informed him of his right to be searched in the presence of gazetted officer or Magistrate and served a notice to that effect. Ex.P.4 is the served notice on the accused. The accused failed to avail that opportunity and gave reply in Ex.P.5. Then Excise Inspector opened M.O.1 and M.O.2 and found Ganja. He got weighed the same and found that M.O.1 was containing 8.500 kgs. of Ganja and M.O.2 was containing 4.500 kgs. of Ganja. He drew samples of 50 grams from each of M.O.1 and M.O.2, packed and sealed them. They affixed identity slips containing the signatures of Excise Officials and Panchayathdars and accused on M.O.1 and M.O.2. Remaining Ganja was kept in M.O.1 and M.O.2. They were packed and sealed and they were affixed with identity slips. L.W.9 seized bus ticket under Ex.P.1 and obtained the signatures of panchayatdars. Ex.P.1 was issued for two passengers. One passenger got down at Ongole and accused alone was traveling in the bus as he has to get down at Kavali. Then SI arrested the accused and seized Ganja under Ex.P.2 mahazarnama. 15. P.W.4 is the Prohibition and Excise Sub Inspector, who deposed that on 6/12/2007 at about 11-30 p.m., he along with five Constables proceeded to toll plaza of Tangutur at N.H.5 for patrolling including of the vehicles. In the intervening night of 6/7/12/2007 at about 2-30 a.m., they stopped RTC bus bearing No.A.P.28 Z 1850 proceeding from Vijayawada to Tirupati. He served search proceedings on the bus driver under Ex.P.3. He informed that they want to check the baggage and other luggage of the passengers in the bus. They asked the passengers that anybody is willing to act as mediators, but nobody came forward. He served search proceedings on the bus driver under Ex.P.3. He informed that they want to check the baggage and other luggage of the passengers in the bus. They asked the passengers that anybody is willing to act as mediators, but nobody came forward. In the presence of the drivers of bus while they were searching the luggage, they found the accused sitting in the last row in six seaters in perturbing condition with one suitcase and zip bag kept at his feet. On suspicion they took him into custody and on questioning, he disclosed his identity particulars and that those bags belonged to him and that they contained Ganja. Immediately, he informed to L.W.9- Inspector over phone. L.W.9 came within half an hour. Then, in the presence of mediators, L.W.9 and he informed the accused that L.W.9-Bhaskara Rao is a gazetted officer and if he still required any other gazetted officer for searching the baggage, they could secure. The accused informed no necessity of any gazetted officer in writing under Ex.P.4 and Ex.P.5. Then in the presence of mediators, they seized the ticket under Ex.P.1. P.W.1-the driver of bus confirmed the seized ticket which was issued to the accused and another passenger together for the journey from Vijayawada to Kavali and from Vijayawada to Ongole respectively. Then they opened the zip bag and suitcase and found Ganja. They seized 8 1/2 kgs of Ganja from the suitcase and 4 1/2 kgs of Ganja from the zip bag and that he drew 50 grams of Ganja as samples. The seized contraband and sample were duly packed and sealed by him and also affixed identity slips duly signed by him, the mediators and the accused. M.O.1 and M.O.2 is contraband and M.O.3 is samples. They arrested the accused informing the illegal possession of Ganja under the cover of mediatornama duly signed by him, the mediators and the accused. He brought Ex.P.1 to Ex.P.5, M.O.1 to M.O.3 along with accused to the Excise Station and handed over to the Inspector, Bhaskara Rao. He informed the same to his superior, C.I.-Bhaskara Rao about the proceedings covered under Ex.P.6. 16. P.W.5 is the Prohibition and Excise Inspector, who deposed that on 6/12/2007 for patrolling at the tollgate area of Tangutur on N.H.5, P.W.4 along with five Constables were deputed. There was GD entry made by him to that effect. He informed the same to his superior, C.I.-Bhaskara Rao about the proceedings covered under Ex.P.6. 16. P.W.5 is the Prohibition and Excise Inspector, who deposed that on 6/12/2007 for patrolling at the tollgate area of Tangutur on N.H.5, P.W.4 along with five Constables were deputed. There was GD entry made by him to that effect. After few hours on the intervening night at about 2-00 a.m., P.W.4 telephoned to him that they found one person in RTC bus with contraband. Thereafter he reached thereby about 3-30 a.m. and he and P.W.4 searched the person of the accused and seized Ex.P.1 bus ticket from his shirt pocket after confirmation. They also seized suitcase and zip bag containing M.O.1 and M.O.2 contraband. They drew samples, duly packed and sealed under the cover of Ex.P.2 panchanama. He put his signature thereon. Later, he left the place to Station. By 6-30 a.m., while he was on duty, P.W.4 produced the accused, Ex.P.1 to Ex.P.6 and M.O.1 to M.O.3 before him. Having gone through Ex.P.2, he registered a case in PR.No.150/2007-08 under Sec. 8(c. r/w 20(b)(i. of NDPS Act and issued Ex.P.7-FIR. He submitted original FIR to the Court. He also informed to his superiors. He forwarded the accused to the Court for judicial custody. He submitted M.O.1 to M.O.3 to the Special Court with letter of request to send the samples contraband to RFSL, Guntur for chemical examination. Ex.P.8 is letter of request. The remaining contraband was returned by Court for safe custody. Later, he received Ex.P.9-chemical analysis report opining that the samples are of Ganja. After completion of investigation, he filed charge sheet against the accused. 17. P.W.1 and P.W.2 were the drivers of A.P.S.R.T.C. Bus bearing No.A.P.28 Z 1850. P.W.1 did not support the case of the prosecution. P.W.2 supported the case of the prosecution. P.W.1 admitted the search made by the excise officials at Tangutur toll plaza with regard to the bus bearing No.A.P.28 Z 1850. His evidence is that the excise officials stopped the bus and obtained signature of him and other driver on white papers. His evidence is contrary to Ex.P.2-mahazarnama. P.W.1, being RTC driver was not expected to sign on white papers simply at the request of police. It all shows that deliberately he deviated from Ex.P.2-mahazarnama. There is no dispute that Ex.P.3- search proceedings were in printed one. His evidence is contrary to Ex.P.2-mahazarnama. P.W.1, being RTC driver was not expected to sign on white papers simply at the request of police. It all shows that deliberately he deviated from Ex.P.2-mahazarnama. There is no dispute that Ex.P.3- search proceedings were in printed one. It is rather improbable on the part of P.W.1 to sign on white papers as required by the excise officials. It all shows his conduct that deliberately he deviated from the case of the prosecution. On the other hand, the evidence of P.W.2 falsify the evidence of P.W.1. Though P.W.2 could not identify the accused due to long lapse of time, but he categorically admitted about the search made by the excise officials in APSRTC Bus bearing No.A.P.28 Z 1850 at Tangutur toll plaza. He further supported the case of the prosecution that the excise police found one suitcase and zip bag at the feet of one person sitting at the last seat of the bus. Simply because he could not identify the accused, the case of the prosecution cannot be thrown out. There is evidence of P.W.3 to P.W.5, Excise Constable, Excise Sub Inspector and Excise Inspector respectively, who supported the case of the prosecution even with regard to the identity particulars of the accused. In fact, the evidence of P.W.2 to P.W.5 is consistent as to the place where from the suitcase and zip bag were spotted i.e., at the feet of the accused when he was sitting in the last row i.e., six seater row on the right side of the bags. The contention of the accused before P.W.2 to P.W.5 is that he did not travel in the APSRTC Bus. The contention of accused before P.W.5 is that when he was at tea stall at Railway Station, Ongole, he was taken away by the police. If that be the case of the accused, there should have been a complaint about purported ill-treatment by the excise officials at the time of production of the accused before the learned jurisdictional Magistrate. No such things were found. It is not the case of the accused that he made such a statement pointing out any illegal detention. As seen from Ex.P.1, it is the ticket handed over by the accused to the excise officials. P.W.1 admitted his signature on Ex.P.1. No such things were found. It is not the case of the accused that he made such a statement pointing out any illegal detention. As seen from Ex.P.1, it is the ticket handed over by the accused to the excise officials. P.W.1 admitted his signature on Ex.P.1. By virtue of the above, the prosecution categorically established that during intervening night of 06/07/12/2007 at around 3-30 a.m., police while doing routine patrolling duties, searched the bus and found the accused. In this regard, the case of the prosecution is convincing. 18. The contention of the accused by virtue of the answers from P.W.2 and P.W.3 in cross examination is that there was a possibility for the excise police party to get independent mediators from the employees of toll plaza or from the passengers of the bus and non-joining of them is fatal to the case of the prosecution. It is very difficult to accept such a contention. When P.W.1 and P.W.2 were the drivers, which is not in dispute, nothing wrong on the part of the excise officials to request them to act as mediators, when none of the passengers were coming forward to act as mediators. Hence, the contention of the accused that the excise police failed to join mediators from among toll gate staff or from among the passengers deserves no merits. 19. Now, this Court would like to deal with the contention of the appellant that Sec. 50 of the NDPS Act is not followed. Sec. 50 of the Act runs as follows: 50. Conditions under which search of persons shall be conducted.- (1) When any officer duly authorised under Sec. 42 is about to search any person under the provisions of Sec. 41, Sec. 42 or Sec. 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Sec. 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-sec. (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. [(5) When an officer duly authorised under Sec. 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Sec. 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-sec. (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.] 20. In this regard, the learned counsel for the appellant would rely upon a decision in Kamruddin's case (1 supra). As seen from the above said decision, the factual matrix were that on secret information about the appellant possessing charas in heavy quantity and after prior approval, the raid party arranged a raid. They reached in front of Delite Cinema, where the accused was apprehended having raxine bag in his right hand. He was offered that his search could be conducted before any gazetted officer or a Magistrate, if he so desired, but, he did not opt for the search to be conducted in the presence of the gazetted officer. Later, the search was conducted into so-called raxine bag and into his person and the contraband was recovered. The learned trial Court recorded conviction. The matter was canvassed before the Delhi High Court. The Delhi High Court looked into the fact that Ex.P.W.5/B indicates that the personal search of the appellant was also conducted, but the appellant was not informed of his legal right of his personal search in the presence of gazetted officer or a Magistrate. Therefore, the Delhi High Court held that there was a violation of Sec. 50 of the Act. 21. Therefore, the Delhi High Court held that there was a violation of Sec. 50 of the Act. 21. Now, coming to the present case on hand, Ex.P.2- mahazarnama literally whispers that after noticing the suitcase and zip bag and the version of the accused as to the contents in the same, the Sub Inspector of Excise Police sent information to P.W.5 to come to the spot and P.W.5 is the Excise Inspector and after his arrival, they communicated to the accused that P.W.5 is also a gazetted officer and if he so desires, they will arrange search before any other gazetted officer or a Magistrate, for which the accused replied that there is no need to secure the presence of any other gazetted officer or a Magistrate. Thus, the excise party claimed to have searched the suitcase as well as zip bag and found Ganja. 22. It is to be noted that prior to making search the excise party served search proceedings under Sec. 165 of the Cr.P.C. on P.W.1. Further after arrival of P.W.5, they served notice under Ex.P.4, which runs that the raid party intended to search the suitcase and zip bag and if the accused has any desire, they will be searched before any other gazetted officer or a Magistrate. Ex.P.5 is the purported reply on a separate sheet which runs that the accused has no objection for search of suitcase and zip bag before the C.I. and mediators and there no necessity to get the presence of any other gazetted officer or a Magistrate. The facts in Kamruddin's case (1 supra. are distinguishable from the present case on hand. Here Ex.P.4 and Ex.P.5 indicates that excise officials intended to search the suitcase and zip bag. In Kamruddin's case (1 supra), the raid party obtained the signature of the accused on the notice served on him. So, it is very clear that the facts in Kamruddin's case (1 supra. are distinguishable from the present case on hand. In the present case Ganja was not recovered on account of the personal search of the accused. 23. Now this Court would like to deal with well established precedents relating to Sec. 50 of the NDPS Act. 24. So, it is very clear that the facts in Kamruddin's case (1 supra. are distinguishable from the present case on hand. In the present case Ganja was not recovered on account of the personal search of the accused. 23. Now this Court would like to deal with well established precedents relating to Sec. 50 of the NDPS Act. 24. A close perusal of Sec. 50 of the Act means that if the arrested person requires that he should be searched before a Gazetted Officer or a Magistrate, the empowering officer shall take him to the Gazetted Officer or Magistrate. The law is well settled with regard to Sec. 50 of the Act. It has no application when there is no personal search of the accused. 25. In Bodaband Sundar Singh vs. State of A.P., 2001(2) ALD (Crl.) 928 (AP). there was a case where the investigating agency found contraband in possession of a box and zip bag of the accused. The trial court recorded conviction against the accused. Then, the matter went in appeal before the High Court of A.P., at Hyderabad. The High Court of A.P. referred various decisions and held that Sec. 50 of the N.D.P.S. Act would come into play only in the case of a search of a person as distinguished from search of any place etc. The High Court of A.P. in arriving at such a conclusion relied on a decision of the Hon'ble Supreme Court in Kalema Tumba vs. State of Maharashtra., AIR 2000 SC 402 and further the Constitutional Bench decision of the Hon'ble Supreme Court in State of Punjab vs. Baladev Singh., (1999) 6 SCC 172 . The High Court of A.P. by following the above said decisions held that the search of a person indicates search of the body of the person but not other belongings like hand bags, suitcases, etc., as such when there is search of a person, then only the procedure contemplated under Sec. 50 of the Act has to be resorted to. 26. In Saikou Jabbi vs. State of Maharashtra in Criminal Appeal No.103 of 2003, 2004 (14) ILD 271. 26. In Saikou Jabbi vs. State of Maharashtra in Criminal Appeal No.103 of 2003, 2004 (14) ILD 271. the Hon'ble Supreme Court dealing with Sec. 50 of the Act and also by relying upon the earlier decisions in Kaleme Thumba's case (3 supra) and Baladev Singh's case (4 supra), held that language of Sec. 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises and is not applicable to other types of search. 27. The Hon'ble Supreme Court in State of Haryana v. Jarnail Singh and others., AIR 2004 Supreme Court 2491 also by following earlier decisions reiterated that Sec. 50 of the N.D.P.S. Act did not apply when the search of a Tanker was conducted because it was not a personal search. 28. Apart from this, the Hon'ble Supreme Court in State of Rajasthan vs. Parmanand and another., (2014) 5 Supreme Court Cases 345 had an occasion to refer the Constitutional Bench decision in Baladev Singh (4 supra). The Hon'ble Supreme Court extracted the observations in Baladevi Singh's case (4 supra) as follows: (1. That when an empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-sec. (1. of Sec. 50 being taken to the neared Gazetted Officer or to the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (2. That failure to inform the person concerned about the existence of his right to be searched before a Gazetted officer or a Magistrate would cause prejudice to an accused. (3. That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Sec. 50 of the Act. 29. 29. As seen from the judgment of the Constitutional Bench of the Hon'ble Supreme Court in Baldev Singh's case (4 supra), if any search is conducted violating Sec. 50 of the Act, it may not vitiate the trial but render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, if the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Sec. 50 of the Act. 30. Coming to the present case on hand, this Court is not encountering with any situation where the Ganja was recovered on account of the personal search of the accused. The very intention of the excise officials as evident from Ex.P.4 and Ex.P.5 was to search the suitcase and zip bag. Undoubtedly, in view of the above said well established precedents, absolutely, there is no necessity whatsoever to comply the statutory requirement under Sec. 50 of the Act when the search was relating to only from suitcase and zip bag. However, out of lacking proper legal knowledge or under any misconception, the excise officials claimed to have issued Ex.P.4 and obtained the reply under Ex.P.5. Therefore, when there is no statutory requirement to comply Sec. 50 of the Act when the search is relating to the suitcase and zip bag and out of innocence or ignorance, when the excise officials claimed to have complied it, the search is not vitiated in my considered view. It is no doubt true that the gazetted officer as contemplated under Sec. 50 of the Act should be one unconcerned with the investigation. Admittedly, the act of the excise officials showing that P.W.5 is also a gazetted officer and if the accused so desires, they will secure any other gazetted officer is not proper. If really there is recovery of Ganja from the person of the accused, then admittedly such search is vitiated because P.W.5 cannot be termed as an independent gazetted officer. Hence, viewing from any angle, the facts in the present case totally are distinct from that of the facts in Kamrudding's case (1 supra). 31. Hence, this Court is of the considered view that absolutely the contention of the accused that Sec. 50 of the Act is violated is not at all tenable. 32. Hence, viewing from any angle, the facts in the present case totally are distinct from that of the facts in Kamrudding's case (1 supra). 31. Hence, this Court is of the considered view that absolutely the contention of the accused that Sec. 50 of the Act is violated is not at all tenable. 32. Coming to the contention of the accused that there was violation of Sec. 42 of the N.D.P.S. Act, now, I proceed to deal with the same. Firstly, I would like to deal with as to whether the compliance of Sec. 42 of the Act is necessary in this case and if so it is complied. Sec. 42 of the Act runs as follows: 2[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. 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 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 persons 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, -- (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 VA 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: 1[Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made there under, such power shall be exercised by an officer not below the rank of sub-inspector: Provided further 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-sec. (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.] 33. A close perusal of Sec. 42 of the Act means that if the empowered officer has any information out of his personal knowledge or information given by any person and taken down in writing about the storage of any narcotic drug or psychotropic substance in any house, enclosed place or in any conveyance, he may between sunrise and sunset enter into and search any building, conveyance or place and seize such contraband. The proviso of Sec. 42 reveals that such search can be conducted between sunset and sunrise. When Sec. 42(1. contemplates search during day time, the proviso contemplates search during night time. According to Sec. 42(2. of the Act where an officer takes down any information in writing under sub-sec. (1) or records grounds for his belief under the proviso thereto, he shall within 72 hours send a copy thereof to his immediate official superior. 34. The evidence on record reveals that the vehicular checking made by P.W.3 to P.W.5 was only a routine one. It was not based on any specific information. Hence, absolutely, it is not a case where compliance of Sec. 42 of the Act is not necessary. 35. Turning to the contention of the appellant that Sec. 43 of the Act is violated, this Court would like to extract here Sec. 43 of the Act. Sec. 43 of the N.D.P.S. Act runs as follows: 1[43. Hence, absolutely, it is not a case where compliance of Sec. 42 of the Act is not necessary. 35. Turning to the contention of the appellant that Sec. 43 of the Act is violated, this Court would like to extract here Sec. 43 of the Act. Sec. 43 of the N.D.P.S. Act runs as follows: 1[43. Power of seizure and arrest in public place.-Any officer of any of the departments mentioned in Sec. 42 may- (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act 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; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.-For the purposes of this Sec., the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.] 36. A close perusal of Ss. 42 and 43 of the Act reveals that Sec. 43 of the Act refers to the power of seizure and arrest in public place. Nowhere it is provided under Sec. 43 of the Act that procedure contemplated under Sec. 42 has to be violated. 37. Apart from this, the Hon'ble Supreme Court in Jarnail Singh's case (6 supra. clearly held that "Sec. 42 and 43 contemplate two different situations. Sec. 42 contemplates entry into and search of any building, conveyance or enclosed place, while Sec. 43 contemplates a seizure made in any public place or in transit. If seizure is made under Sec. 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. Sec. 42 contemplates entry into and search of any building, conveyance or enclosed place, while Sec. 43 contemplates a seizure made in any public place or in transit. If seizure is made under Sec. 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Sec. 43 of the Act and, therefore, if a pubic conveyance is searched in a public place, the Officer making the search is not required to record his satisfaction as contemplated by the proviso to Sec. 42 of the NDPS Act for searching the vehicle between sunset and the sunrise. In the instant case, the tanker was moving on the public highway when it was stopped and searched. Sec. 43, therefore, clearly applied to the facts of the case. Thus there was no requirement of the Officer conducting the search to record the grounds of his belief as contemplated by the proviso to Sec. 42. More so, when Superintendent of Police was also a member of the searching party." 38. While holding so, the Hon'ble Supreme Court reversed the judgment of Punjab and Haryana High Court and restored the conviction imposed against the respondents by the learned Special Judge. 39. Hence, absolutely, the contention of the appellant that Ss. 42 and 43 of the NDPS Act is violated does not deserve any merits. 40. Turning to Sec. 57 of the NDPS Act, it contemplates to report to the superior officers about the arrest and seizure within 48 hours after arrest and seizure by making a full report. It is to be noted that the accused was duly produced before the concerned Court for the purpose of remand within 24 hours. Though the prosecution did not produce any document that the investigating officer forwarded the arrest and seizure to the superiors, but thing is that for conducting routine vehicular checking, the S.I. of Police obtained permission under Ex.P.6 from the superiors. Though there is no document marked with regard to the report of arrest and seizure to the superior officers of P.W.4 or P.W.5, but the fact remained is that hardly within 24 hours the factum of seizure and arrest was borne out by the record before the concerned Court. The provisions of Sec. 57 of the Act are directory in nature. The provisions of Sec. 57 of the Act are directory in nature. Hence, none production of any document as to the compliance of Sec. 57 of the Act would not vitiate the conviction. 41. Now this Court would like to proceed to deal with other contentions of the accused. 42. The evidence of P.W.3 to P.W.5 and even P.W.1 in chief examination and the contents of Ex.P.2 established that the accused was sitting in the last row consisting of six seaters and he was sitting on the right side of the bus and the contraband was found at the foot of the accused. It is consistently spoken to by P.W.3 to P.W.5. Though P.W.2 did not identify the accused, but he supported the case of the prosecution with regard to the location where from the suitcase and zip bag were found. A stray answer was elicited during cross examination of P.W.2 as if the bags which were seized by the excise officials were in the middle of the bus in the space meant for two and fro of the passengers. It is to be noted that absolutely a person who possessed Ganja would not take risk of keeping the contraband box in the middle of the bus in a way which is meant for the passengers for two and fro. Apart from this, P.W.3 to P.W.5 were not at all cross examined in this regard. Nothing is suggested to P.W.3 to P.W.5 that those boxes were found in the middle of the bus in the space meant for two and fro of the passengers. Basing on the above answer, the accused cannot contend that he has no conscious possession of Ganja. 43. It is to be noted that in a case of this nature, where the accused totally denied the case of the prosecution even by going to the extent of saying that he never travelled in the bus, such a defence on the part of the accused that boxes were found in the middle of the bus is nothing but fallacious. Under the circumstances, the evidence on record cogently establishes that suitcase and zip bag was found at the feet of the accused. Therefore, the accused was found in conscious possession of the suitcase and bag. 44. A perusal of Ex.P.9-chemical analysis report reveals that the samples are of Ganja. Under the circumstances, the evidence on record cogently establishes that suitcase and zip bag was found at the feet of the accused. Therefore, the accused was found in conscious possession of the suitcase and bag. 44. A perusal of Ex.P.9-chemical analysis report reveals that the samples are of Ganja. The prosecution established the link between the samples and the Ganja that was found in possession of the accused. The contention of the accused that police took away him while he was at tea stall on Ongole Railway Station is not at all tenable. 45. Now, it is relevant to refer herein certain presumptions as contemplated under Sec. 35 of the N.D.P.S. Act. According to Sec. 35 of the Act, in any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. The explanation of the above shows that culpable mental state" includes intention, motive knowledge of a fact and belief in, or reason to believe a fact. The Hon'ble Supreme Court in Madan Lal vs. State of H.P., (2003) 7 SCC 465 held that once possession is established, then the person who claims that it was not a conscious possession has to establish it because how he came to be in possession is within his special knowledge. 46. According to Sec. 54 of the N.D.P.S. Act, it contemplates certain presumptions. According to the said sec. in trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused committed the offence under this Act in respect of any narcotic drug or psychotropic substance or controlled substance for the possession of which he fails to account satisfactorily. 47. It is no doubt true that the presumption under Sec. 54 of the N.D.P.S. Act and the presumption under Sec. 35 would arise after the prosecution discharged its burden to prove the recovery of the contraband from the accused. In my considered view, the prosecution discharged its burden about the recovery of contraband from the possession of the accused. In such circumstances, it is for the accused to prove the contrary. In my considered view, the prosecution discharged its burden about the recovery of contraband from the possession of the accused. In such circumstances, it is for the accused to prove the contrary. The accused had no semblance of say much less probable say to prove contrary. 48. In the light of the above, this Court is of the considered view that the prosecution adduced cogent and consistent evidence before the learned Special Judge, Ongole to prove that the accused was found in possession of 13 Kgs. of Ganja in the intervening night of 06/07/12/2007. The learned Special Judge, Ongole rightly appreciated the evidence on record and rightly found the accused guilty of the offence. Under the circumstances, this Court does not find any tenable grounds to interfere with the judgment of the learned Special Judge, Ongole. 49. In the result, the Criminal Appeal is dismissed, as such, the judgment, dtd. 19/1/2009 in Sessions Case No.3 of 2008, on the file of Special Judge for NDPS Cases-cum-I Additional District and Sessions Judge, Ongole shall stand confirmed. 50. The Registry is directed to take steps immediately under Sec. 388 Cr.P.C. to certify the judgment of this Court to the trial Court on or before 20/10/2023 and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against accused/ appellant and to report compliance to this Court. 51. The Accused/ appellant is directed to surrender before the Court below on or before 20/10/2023 and on such surrender, the learned Special Judge for NDPS Cases-cum-I Additional District and Sessions Judge, Ongole shall take necessary steps to entrust the conviction warrant. If accused fails to surrender on or before 20/10/2023, the learned Special Judge for NDPS Cases-cum-I Additional District and Sessions Judge, Ongole shall issue Non Bailable Warrant and shall take necessary steps to carry out the sentence imposed against him. 52. The Registry is directed to forward the record along with copy of the judgment to the Special Judge for NDPS Casescum-I Additional District and Sessions Judge, Ongole with special messenger on or before 20/10/2023 and thereupon, the Special Judge for NDPS Cases-cum-I Additional District and Sessions Judge, Ongole shall serve a copy of the judgment to the appellant. Consequently, miscellaneous applications pending, if any, shall stand closed.