Sri C v. S. S. Srimanth Kumar The Court delivered the following JUDGMENT

Counsel for the Respondent No. 16: Sri C. V. S. S. Srimanth Kumar The Court delivered the following JUDGMENT: THE HONOURABLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.1719 OF 2OO5 JUDGMENT: This appeal is filed by DRI (Directorate of Revenue Intelligence), challenging the acquittal recorded by the Metropolitan Sessions Judge, Hyderabad, in S.C.No.35O/2OO2, vide Judgment dt.30.06.2005, for the offences under Sections 22, 25, 27-A & 29 of NDPS Act against Al; 22, 25-A, 27-A & 29 of NDPS Act against 42; 22, 27-A,29 of NDPS Act against A3;22,29 of NDPS Act against A4;22,25 & 29 of NDPS Act against A5;22,25 & 29 of NDPS Act against A6;22, 25 & 29 of NDPS Act against A7;22 of NDPS Act against A8; 22 & 25 of NDPS Act against A9; 22 of NDPS Act against AIO:.22 of NDPS Act against Ail; 25-A & 3l of NDPS Act against Al2;25-A of NDPS Act against A13 to A16.

2. The case of the prosecution is that specific intelligence was gathered which indicated that Methaqualone, a Psychotropic Substance specified in the schedule to Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act) was being manufactured at M/s.Neepa Chem Laboratories Private Limited, located at Survey No.441, Brahmanpally Road, Bibinagar, Nalgonda District and further being converted into tablets at H.No. l-1, Masanpally Village, Basheerabad Mandal, Ranga Redddy 2 District. The gist of intelligence was recorded by LW. l-S.Yanadi Reddy, Senior Intelligence Officer and in compliance with section 42 of the NDPS Act, LW. l-S.Yanadi Reddy reported the gist of intelligence to his immediate oftcial superior LW.2- M.subramanyam, Senior Deputy Director vide letter dated

9.O5.2OO2. On the basis of search authorizations issued by LW. 1- S.Yadagiri Reddy, the officer of Directorate of Revenue Intelligence a-long with Central Excise Officer conducted search at the above mentioned premises on 10.O5.20O2 in the presence of independent witnesses and the proceedings were drawn under the respective panchanamas dated LO.O5.2OO2.

3. The search part5r headed by LW.3-A.V.S.Mallikharjuna Rao, Intelligence Officer conducted the search of Plant-II (New Shed) of M/s.Neepa Chem Laboratories Private Limited, Survey No'441, Brahmanpally Road, Bibinagar, Nalgonda District, in the presence of two independent witnesses LW.4-P.Ramesh and LW.5- I. Swamanna. At that time A8 was present and later Al, A2 and A3 came to the premises. The process of operations were in progress. During the search, off-white coloured powder packed in 10 po\rthene bags on the machine floor ald certain quantit5r of off white coloured powder in the drying-chamber, besides other chemicals, reaction mass and in-process residue were found. The 3 oflicers conducted tests on the off-white coloured powder with the help of a field-test-kit brought by them and the same tested positive for the presence of Methaqualone, a psychotropic substance specified in the scheduled to the NDPS Act. The officers also searched a Tata Safari vehicle bearing No.AP 9AC 9145 parked at the said premises and recovered a passport bearing No.72723 issued in the name of ,A,2 and a polythene cover containing off- white coloured powder, which also tested positive for the presence of Methaqualone. Before conducting the personal search of Al, A2, ,4'3 and A8, they were asked whether they would like to be searched before a Magistrate or Gazetted Ofhcer. They informed that they had no objection to be searched before any Officer. Thereafter, the personal search of the above accused persons was conducted before LW.6-Shaik Khan Saheb, Superintendent of Central Excise who is a Gazetted officer. Nothing was recovered from the personal search of A1. The incriminating documents recovered from A2 include, among others, a slip showing requirement of bags which later was identified as in the hand-writing of A1, cheque No.862637, dated 31.05.2OO2 drawn in favour of M/s.Sain Chem Pharma Private Limited for an amount of Rs.41,2 1,2O0/- signed by one Prashant, which later admitted to be in the hand writing of Al and a digitaf diary containing, €rmong others, the telephone 4 numbers of Al, A3, A4, A7, A8, A9, A10 and All. The incriminating documents recovered from ,{3 include, among others, a slip showing details of raw materials and a slip showing time cycle of manufacturing process of Methaqualone. A small sachet containing powder and a polythene cover containing dull white powder were also recovered from A3. The incriminating documents recovered from A8 include, arnong others, a diary in which details of raw material were written and a paper slip containing manufacturing process of Methaqualone, which was identified later as in the hand-writing of A3. The oflicers have drawn representative samples, in duplicate from the said powder, weighed and placed them in heat sealed polythene covers, which were in turn placed in paper envelopes and sealed \Mith DRI seal. The powder recovered from the TATA Safari vehicle was a-lso weighed and placed in a heat sealed polythene cover which was in turn placed in a paper envelope and sealed with DRI seal. A1l the paper envelopes were duly marked. Representative samples, in duplicate, were also drawn from the chemicals, reaction mass and in-process residue, were packed and sealed. The off-white coloured powder recovered from the premises and from the Tata Safari vehicle was packed, weighed and sealed with DRI seal. The oflicers have a-lso inventorised the plant and machinery used for the manufacture of 5 Methaqualone. Then the ofhcers seized the powder weighing

686.81 1 kgs., chemicals, reaction mass, in-process residue, plant and machinery, equipment and Tata Safari vehicle bearing No.AP 9AC 9145 on reasonable belief that the same are liable to confrscation under the Act.

4. The entire search proceedings were reduced into writing under panchana.ma dated 10.05.2OO2. In compliance with Section 57 of the NDPS Act, Lw.3-A.V.S.Mallikarjuna Rao, Intelligence Officer .has submitted report regarding the above seizure to his immediate officia-l superior LW. l-S.Yanadi Reddy vide letter dated

70.o5.2002.

5. Simultaneous search was also conducted by the team of officers headed by LW.7-C.Sridev Kumar, Intelligence Officer at H.No. l-1, Masanpally village, Basheerabad Mandal, Ranga Reddy District on 10.05.2002 in the presence of two independent witnesses LW.8-Shaik Riyaz Ahmed and LW.9-Mohd.Subhan. A.10 was present at that place. As a result of the search of the cattle shed in the premises, the officers found powder, granules and tablets which were tested by the ofhcers with the help of a field test kit and the same tested positive for Methaqualone, The tablets contained ' * ' (star) marking on one side and 'M' marking on the other side. The officers also found tablet punching machine, mass 6 mixer and a drier in the cattle shed. The offrcers also recovered certain raw materials and equipment from the outer shed of the premises. Before conducting his personal search, A10 was asked whether he would like to be searched before a Magistrate or a Gazetted officer. Thereafter, personal search of A1O conducted before LW. 10-R.Rajendran, Superintendent, Central Excise, who is a Gazetted Officer, resulted in recovery of inter alia a telephone diary and paper slips containing narnes and telephone numbers of A2, A3, A7 and A12 and also the telephone number of Hotel Manjeera, Hyderabad. Later, the officers searched a Maruti Omni van bearing No.AP lOF 3145 found parked in the premises and as a result of the search, tablets and powder were recovered. The same tested positive for Methaqualone when tested with the help of a field-test-kit. Then the oflicers searched the residential portion of the premises and recovered certain documents. Representative samples, in duplicate, were drawn from the material recovered from the cattle shed and the Maruti Van, the suune were weighed and placed in heat sealed polythene covers, which were in turn placed in paper envelopes and sealed with DRI seals. AIl the paper envelopes were duly marked. Representative samples, in duplicate, were also drawn from the raw material, and were weighed, packed and sealed with DRI seal. The powder, granules and tablets 7 recovered from the premises and from the vehicle were packed, weighed and sealed with DRI seal. The offrcers later seized the Methaqualone in the form of tablets/powder/granules totally weighing 602.50 kgs., and other raw materials on a reasonable belief that the same are liable for confiscation under the Act. The offrcers also seized the Maruti Omni Van bearing registration No.AP 10F 3145, tablet punching machine, mass mixer, drier and other equipment on a reasonable belief that they are liable to confiscation under the Act

6. On the same day i.e.. 10.05.2002, AL, A2, A3, AB, A10 and A11 were summoned to DRI oflice and their statements were recorded under section 67 of the Act.

7. On 14.O5.2OO2, the officers of Directorate of Revenue Intelligence headed by LW. 13-Shivaji Rao, Intelligence Officer searched the residence of 44, located at 19-91/4, plot NO.156, East Kalyanpuri, Uppal, Hyderabad in the presence of two independent witnesses LW. 14-K.M.Avadhani and LW. 15- S.Srinivasa Rao which resulted in recovery of inter alia diary containing cell phone number 9849318712 of A2.

8. On 14.05.2002 the officers of Directorate of Revenue Intelligence headed by LW. i6-K.Lakshmipathi, Intelligence Officer, 8 searched Piot No.34, V.S.Nagar, Telephone Exchange Road, Nacharam, Hyderabad, 1n the presence of LW. l7-Y.Yugandhara Rao and LW. l8-D.Raja Sekhar and seized 2975 kgs. of Yellowish green coloured line powder on a reasonable belief that the same was meant for using in the manufacture of Methaqualone. LW. 13- Shivaji Rao, Intelligence Officer who was present at that time in the premises was summoned and the statement of M.R.Rahman who was present was recorded by Shivaji Rao wherein he stated that he is a friend of A,9 and he allowed A9 to store the materia-l. Representative samples, Itt duplicate, were drawn which were weighed, packed and sealed with DRI seal

9. On 14.O5.2OO2, A4, A5 and A6 were summoned to Directorate of Revenue Intelligence Office and their statements were recorded under Section 67 of the Act. The statement of ..A'4 was recorded by LW. ll-D.Aroop Das and the statements of A5 and .4,6 were recorded by LW. l-S.Yanadi Reddy. As they were found to have committed offences punishable under the Act, they were arrested on 14.O5.2OO2 by LW. l-S.Yanadi Reddy and LW. 11- D.Aroop Das and were remanded to judicial custody by the Metropolitan Sessions Judge, Hyderabad.

10. On 15.05.2002, the ofhcers of Directorate of Revenue Intelligence headed by LW. 19-S.Ravindranath, Intelligence officer 9 searched the table drawers and cupboards used try A4 at IICT, Hyderabad in the presence of two independent witnesses LW.2O- S.Srinivas Rao and LW.21-G.Shyam Rao. As a result of the search incriminating documents, arnong others, literature on Methaqualone and two polythene sockets containing off-white coloured powder were recovered. The powder on testing with the help of the field test kit, tested positive for Methaqualone. Representative samples, tn duplicate were drawn, weighed the same and kept in a heat sealed po\rthene cover which were in turn kept in a paper envelope, marked and sealed with DRI seal. The recovered powder was a-lso weighed, packed and sealed with DRI seal. The officers seized the said powder as the same is liable to confiscation under the Act. The officers also seized the documents in connection with the investigation.

11. On 18.O5.20O2, A9 was summoned to Directorate of Revenue Intelligence office and his statement was recorded under Section 67 of the Act. As he was found to have committed offences under the Act he was arrested by LW. 1l-D.Aroop Das on 18.05.2002 and remanded to judicial custody by the Metropolitan Sessions Judge, Hyderabad.

12. On 24.O5.2OO2, the Directorate of Revenue Intelligence oflicers headed by LW.22-M.V.Sreeram searched M/s.National 10 Pharma Lab, 3-4-495/A, Hiline Apartments, Barkatpura, Hyderabad, in the presence of two independent witnesses LW.23- S.Gyaneshwar and LW.24-P.V.Harikrishna. A15 was present in the premises. During the search, the oflicers recovered among others a diary work book containing references such as Nikitha Chemicals, A,4 (Acetic Anydride) and Sukesh Reddy-Al4 i3. A14, A15 and ,4.16 were summoned to Directorate of Revenue Intelligence Office and their statements were recorded under Section 67 of the Act.

14. On 06.06.2002, A7 was summoned to Directorate of Revenue Intelligence Oflice and his statement was recorded by LW. 11- D.Aroop Das under Section 67 of the Act. As he was found to have committed an offence under the Act, he was arrested.

15. A12 and A13 were summoned to Directorate of Revenue Intelligence Office and their statements were recorded on

13.06.2002 and 17.06.2002 by LW. l-S.Yanadi Reddy under Section 67 of the Act. As they were found to have committed an offence under the Act, they were arrested.

16. Analysis reports for the samples sent to the Customs Laboratory, Customs House, Chennai were received vide their letters L.Nos.31 to 45/2I-5-2002, dated 18.06.2OO2, L.Nos.46, 48, 11 62 and 76-77/21-5-2OO2 dated 22.07.2OO2, L.Nos.47, 61 ,63,78 and 79/21-5-2OO2 dated 22.O7.2OO2, L.Nos.49-57121-O5-2OO2 dated 17.O7.2OO2, L.Nos.58-60 /21 .O5.2OO2 dated 18.07.2OO2 and L.Nos.64-75 l2l.O5.2OO2 dated L7.O7.2OO2. The reports indicate that the off-white coloured powder seized at M/s.Neepa Chem Private limited, I3ibinagar and powder, granules and tablets seized at Masanpally, powder seized from the cupboard of A'4 at IICT, Powder seized from Tata Safari vehicle bearing registration No.AP9AC 9145, powder and tablets seized from Maruthi Omni bearing registration No.AP lOF 3145 and powder seized from the person of A3 have tested positive for Methaqualone. The other chemicals and raw material have also tested positive for the respective substances. In respect of reaction mass seized from the reactors at M / s. Neepa Chem Lab Private Limited the reports indicate that the substance is composed of a complex organic compound and in respect of in-process reside, the report indicate that the substance is an aqueous solution containing organic compounds. In respect of the Intermediary product seized from the person of A3, the report indicates that the substance is composed of complex organic compound.

17. From the investigation the following emerge; 12 a) That around February, 2OO2, AL and A2 at the behest of Al7 a Dubai based narcotics dealer, hatched a conspiracy to manufacture and supply 3 million Methaqualone tablets at the rate of Rs.S/- per piece. In pursuit of the said common goal, A1 and A2 roped in A3 who is a post graduate in Chemistry having good knowledge in the held of specialty chemicals and drugs. The trio agreed to share the profits equally. b) A1, using his past acquaintance contacted A5 and managed to convince him to permit to use plant-Il (new shed) in the factory premises of M/s.Neepa Chem Lab Private Limited. A1 and ,A.2 visited the factory premises, inspected the plant and machinery and entered into a verbal understanding with A5 and A6 to rent out the premises for manufacture for a consideration of Rs.l,OO,OOO/- per ton. A5 and A6 received an amount of Rs.70,00O/- as advance from A1 and A2 for letting out the fa.ctory premises. They also loaned the materials from their factory stocks to A2 for the manufacturing of Methaqualone as evident from the statement of LW.4 5-Chille Satlranandam. c) In pursuance of the said conspiracy and in the same transaction, ,{2 has selected his in-laws' residence located in a remote village called Masanpally as a safe place for carrying out the illicit activity. He managed to convince A7, who is his brother-in-1aw' to allow 13 cattle shed in the premises to be used for manufacturing activity. A7 agreed to rent out the shed for a consideration of Rs.1,5OO/- per month. A7 also received Rs.25,O0O/- from A1 and A2 as advance for the purpose of reconstruction of the cattle shed. d) In pursuance of the said conspirary and in the sarne transaction, A17 provided A1 a finance of Rs.1O lakhs which was used by A1 and A2 for procuring chemicals and raw materials required for the manufacture of Methaqualone. A3 contributed an amount of Rs.2 lakhs and ,4.2 used contacts and procured chemicals and raw materials worth Rs.6 lakhs on a loan basis. 41 and A2 procured chemicals from LW.4O-P.V.K.S.B.Brahmananda Rao who supplied the same on loan basis on the recommendation of A5 and A6. Al and A,2 procured acetic anhydride and anthranilic acid, the two precursors for manufacture of Methaqualone, from A12 and Al3. The anthranilic acid was procured using the name of LW.36-G.Prashant. A1 a.lso procured 3 MT of orthotoluidine arranged by A17. The chemicals and raw materials were stored in the factory without names and lables on the packing apparently to keep the identity of the chemicals secret. e) In pursuance of the said conspiracy and in the same transaction A1 procured tableting machine arranged by AlZ, Al and ,A.2 also bought mass mixer from LW.37-M.V.Mallikarjun Rao, drier from 74 LW.48-K.Brahmam and punches from LW.34-V.Chittaranjan. The above equipment required for tableting the Methaqualone substance were installed at Masanapally. f) In pursuance of the said conspiracy and in the same transaction, ,4.3 developed the process of manufacture of Methaqualone, tested Mathaqualone samples, provided methods for improving the yield and quality of Methaqualone substance and supervised the production of Methaqualone in the factory. 10 grams of Methaqualone was recovered and seized from his person g) In pursuance of the said conspiracy and in the same transaction Al and ,{2 also roped A4 into the conspiracy, a senior scientist in the Indian Institute of Chemicals Technolory, Hyderabad, who knowingly tested Methaqua-lone samples, met A1, A2 and A3 and discussed about the manufacture of Methaqualone and also advised them how to improve the qua-lity and yield of Methaqualone. He also furnished literature and technical details of Methaqualone to A2. A2 visited Indian Institute of Chemical Technologr

06.03.2002, 19.03.2OO2, OI.O4.2OO2 and

03.04.2002 in the name of Ramesh Kumar and met 44 in this connection. A4 received Rs. I2,OOO/- for extending the above favour. 28 grams of Methaqualone was recovered from his personal cupboard. Thus, ,{4 became party to the conspiracy. 15 h) Though AS and A6 learnt about the manufacture' of Methaqualone in their factory through A3, they failed to stop the illicit manufacture. They also did not bring this to the notice of the directors of their company. Instead they had a meeting with A1, A2 and A,3 at Hotel Taj Banjara on 09.O5.2002, where they agreed to continue to extend the facility of manuf,acture of methaqualone in thet factory for an additional consideration of Rs.S lakhs and profits, which A1 promised to give them. Thus, A5 and 4,6 became parties to the conspiracy. i) A7 having come to know of Ure manufacture of Methaqualone tablets at his Masanpally premises, failed to stop the same for a financial consideration. He active$ assisted Al and A2 in the procurement, handling and transport of punching machine, mass mixer and drier. At the behest of A1 and A2,he visited Mumbai on

31.O3.2OO2 and stayed in Al-Fatah Guest House in the assumed name of Rajkumar and received a standard Methaqualone sample from an unidentified person sent by A. 17 and delivered it to A1 and A2. On 10.05.2OO2 he carried the methaqualone sample manufactured at the behest of Al and A2 and. stayed in the same hotel in the assumed name of Vinod Patel for delivering the same to a person to be sent by Al7. 16 j) A8 at the behest of A3 actively assisted A3 in the manufacture of methaqualone substance in the factory premises. k) ,,A,9 assisted Al and A2 in procurement, handling and transport of chemicais and equipment used in the manufacture of methaqualone as evident from the statements of LW.33- M.A.Rahman, LW.35-Y.R.P.Shetty, LW.36-G.Prashant, LW.37- M.V.Mallikarjun Rao, LW.48-K.Brahmam, LW.49-B.Mallesh, LW.50-N.V.Krishna Rao, LW.51-Mohd.Ghouse, and LW.59- Bhattacharya. At the behest of Al and A2, A9 carried Methaqualone sample to Mumbai and stayed in Madina Hotel on 3O.O4.2OO2 in the name of Mohd.Hasan and delivered the same to an unknown person sent by AI7. A9 installed the tableting machine, mass mixer and drier in the cattle shed at Masanpally village. He permitted ,A,2 to use his Maruti Van bearing No.AP 10F 3145 from which 4 kgs. of Methaqualone powder and tablets were recovered and seized. 1) AlO knowingly assisted in the tableting of methaqualone substance at the cattle shed in Masanpally village at the behest of Al and A2. He was present in the premises when the search was conducted by the officers on 10.O5.2002. 17 m) All acting as driver of A1, actively assisted in handting and transportation of machines, equipment and raw materials used in connection with the manufacture of methaqualone. He transported methaqualone substance from the factory premises to Masanpally village using Tata Safari vehicle bearing registration No.Ap 9 AC 9145 as evident from the statement of LW.45-Chille Satyanandam. n) A1 and A2 also transported the methaqualone substance from factory to Masanapally using Tata Safari vehicle bearing registration No.AP 9 AC 9145 and Maruthi Omni bearing registration No.AP lOF 3145 as evident from the statement of LW.45. The Tata Safari vehicle bearing registration No.Ap 9AC 9145 from which 2Bl grarns of methaqualone powder was recovered belongs to M/s.GDR International India Limited represented by A1. o) The investigation revealed that 4.16 who has been carrying on business in chemicals in the name of Nikita Chemicals, purchased acetic anhydride from one Vikas of Mumbai whose identity could not be established. In the month of August, 2OOt, AL6 sold the said acetic anhydride to Al5 who in turn sold the same to A12 and A13 and the same was sent to M/s.Coastal Labs, Sullurpet, as evident from the statement of LW.44-y.MuraIi Manohar. 18 p) In the month of April, 2OO2, w}l,en ,{2 required acetic anhydride for the manufacture of methaqualone, which was brought from Sullurpet to Hyderabad by engaging M/s.Kranthi road Transport Private limited, Uppal Branch, Hyderabad, vide Lorry Receipt Nos.54653 and 54654 dated 05.04.2OO2. A2 has talen the delivery of the said acetic anhydride in 8 drums as evident from the statement of LW.39. A1, A2 and A13 travelled from Secunderabad to Sullurpet on 04.O4.2O02 in connection with the transportation of the said acetic anhydride. A12 and A13 also sold 5,000 kgs. of anthranilic acid required for the manufacture of methaqualone to A2 in the month of April, 2OO2 as evident from the statements of LW.33-M.A.Rahaman, LW.3s-R.Y.P.Setty, LW.36-G.Prashant, LW.53-M.Pratap Reddy and LW.54-D.Vijaya Bhaskar Reddy. The said acetic Anhydride and anthranilic acid were used in the manufacture of methaqualone which was seized. q) the acetic anhydride is a controlled substance as specified in standing order No.198(E) dated 24.03.1993 issued under Section 9A of the Act. A2, A12 to A16 have not followed the prescribed procedure and maintained any records or liled any returns in respect of the above said acetic anhydride, as required under the Narcotic Drugs or Psychotropic Substances (Regulation of 19 Controlled Substance) Order, 1993 thereby contravened Section 25-A of the Act

18. The trial Court charged the accused as under: Accused Number Section contravened A1 A2 A3 A4 A5 A6 A7 AB A9 Alo ,c11 1^12 A13 A14 A15 Ai6 AI7 8@1,2a,27A,2e 8(c),9A,27A,29 8(c),27A,29 8{cl,2e 8(cl,2s,29 8(c1,25,29 8(c),25,29 B(c) 8(c), 25 8(c) 8(c) 94, 31 9A 9A 9A 9A 27A,29 Punishable under sections 25,25, 27A,29 22,25A, 27A,29 22,27A,29 22,29 22,25,29 22,25,29 cc ,q )o 22 22,5 22 22 25A,31 25A 25A 25A 25A 27A,29

19. Reasons given by the Court below to acquit the accused; The trial Court found that there was Non-compliance with Section 42 of the NDPS Act. The Court observed that; When the Intelligence olficer tuorking under PW.SO gathered the informotion and submitted the said. information to pW.SO orattg and. PW.SO recorded the same into chits and later he sent th.e same to PW.54, but the same process is not contemplated. under 20 the NDPS Act. Ex.P.295 does not satisfg the requirement of Sec.42(1) of tle Act or 42(1)of the Act...... If reallg PW.50 receiued tle information from his subordinates eith.er bg uag of chits or he reduced tnto u.triting on the chits wheneuer his subordinates informed about the present offence. PW.50 ought to haue preserued the said chits to corroborate his euidence that he sent the gist of information as in 8x.P.295 to his supeior offcer after ueifging the said chits. Under the aboue ciranmstances, the contention of Si Kumar that PW.50 uiolated tlrc mandatory prouisions of Sec.42(1) of the NDPS Act is to be accepted. In uiew of my aboue discussion, Sec.42 of the NDPS Act tt-thich is mandatory one is not complied, and tlrc accused persons are entitled for acquittal since the tial itself uould uitiate."

20. The trial Court also found that there was Non-compliance with Sec.50 of the NDPS Act. The Court observed that; But in uieu of my discussion, the contention of Sri B.Adinaragana Ro,o that search of some of the acansed was conducted bg the concerned officers bg complging prouisions of Sec.SO of the NDPS Act cannot be sustained. In fact, PW.4 and PW.7 utho are gazette officers on the member of search partA. Hence their ewdence cannot be taken into consideration. The pinciple laid down in the decision reported in K.Mohanan a. State of Kerala I2OOO SCC (Cri) 12281 rendered bg tlrcir l,ordships of the Supreme Court in the aboue cited c@se, ls squarely applicable to tlw facts of the 2t present case, if the euidence of PW-l is taken into consideration on the o.spect of search. Hence the search of the accused conducted bg concerned officers in this case is in uiolation of mandatory prouisions of Sec.SO of the NDPS Act."

21. Trial Court further held that seizure was not legal. The trial Court observed as; "............it can be said that euen th.e complainant ho's not proued that the poutder that utas found either in the factoryor in the cattle shed of factory at A1 at Masanapalg is Methaqualone as defined in Schedule-I under Psgclatropic substance of the NDPS Act. Under the said circumstances, it can be said that the proseantion failed to proue that charges leueled against 41 begond all reasonable doubt. "

22. Learned Special Public Prosecutor for DRI submitted that the field test kit is a customized testing kit designed by experts in United Nations. The said test kits were used by the seizing officers to come to a prelimina5r confirmation about the presence of specific contraband for enabling them to seize the same. It requires no technical expertise to operate the said test kit. After preliminarlr confirmation of presence of specilic illicit NDPS substances, the material is seized on a reasonable belief and the samples from the seized material are drawn in such manner as specified in the prescribed instructions laid down under the Act and the said samples are forwarded to the competent and a.uthorized laboratories for conducting further tests by experts to determine the presence of illicit drug. Hence, the Trial Court failed to appreciate the procedures laid down.

23. In the present case, the said test report was given by Chemical Examiner to the government CFSL, Chennai, who are designated as experts under Sec.293 of Cr.P.C. The trial Court has examined such chemical examiners who have given the test report conlirming that the forwarded samples were tested for presence of Methaqualone.

24. Ex.P295 has been submitted by PW.50 to his superior officer PW.54 on 09.05.2022 and. t]ne searches were conducted on 10.05.2022. The said 8x.P.295 is undoubtedly the gist of intelligence. It is not mandated in Sec.42(1) of NDPS Act that the pieces of information received over a period of time should be made as evidence. Mere non production of such chits would vitiate the entire trial proceedings is absolutely incorrect. The said Ex.P.295 is the gist of intelligence gathered by the oflicer who had been receiving the information over a period of time and the same has been documented in the form of intelligence when the same was figured out as actionable intelligence. No serious prejudice 1S caused to the accused by non-production of such chits. The gist of intelligence under Ex.P.295 has resulted in seizure of huge quantity of contraband. The said Ex.P.295 has been submitted by PW.SO to his superior offrcer PW.54 and all the compliances under sec.42(1) are met with.

25. The respective accused have expressed their willingness to be searched before the gazette officer and accordingly respective accused werq searched on person by the seizing officer before a gazette officer. Such submission of the prosecution has been documented in respective panchanama marked Ex.P. 17, Ex.PT2 and the same was ignored by the Trial Court. Further, it is the conclusion of trial Court that no recovery was made on the person of many accused, still it concluded that Trial was vitiated due to non-compliance of Sec.5O. Such conclusion of non-compliance of Sec.SO by trial Court would have gained prominence had the personal search of the accused was not conducted before the presence of Gazetted officer or a Magistrate which is not so in the present case. 24

26. Further, the provision of sec.So of NDPS Act does not envisage that the person being searched has to be told about their right to be searched before the gazette officer or Magistrate-

27. The voluntar5r statement of A. I under Section 67 of NDPS Act cannot be considered as truth and the prosecution cannot be put to blame that they could not establish the money trail of Rs.10 lakhs between A. 1 and A. 17. The seizure of huge quantities of contraband from respective places prove the case of prosecution beyond doubt with regard to manufacture and possession of illicit drug. Not establishing the link between A. 17 and A1 will not vitiate the case of the prosecution. Further, the statement of A. 1 under Sec.67 is a voluntary statement given out of his free will.

28. Learned Special hrbiic Prosecutor relied on the following Judgments. i. Mohd.Younus and another v. State of Telanganar ii. Karnail Singh v. State of lila:ryaraa2 iii, Madan Lal and another v. State of H.P.3 iv. Om Prakash Sood v. Union of India and another+ 12018 scc online Hyd 1965 '120091 8 supreme court cases 539 '1zOO31 7 Supreme Court Cas€s 465 o 1zOO31 z Supreme court Cases 473 25 v. Krishna Kanwar (smtf Alias Thakuraeen v. State of Rajasthans vi. Tata Power Company Limited v. BSES Ltd. And others6 vii. Jagdish Budharoji Purohit v. State ofMaharashtraz

29. Learned Counsel for the accused argued on the findings of the trial Court being reasonable. He argued that: i. The complaint was filed stating that the conspiracy of manufacturing 3 million Methaqualone tablets was hatched by Al7, AI & A2. No material evidence was fo-und regarding Al7, giving advance of Rs.1O,00,OOO/- to A. 1 and any association of the accused with A. I7. ii. The claim of DRI officials that seizure of contraband substances which is worth more than 6 crores was an alleged advance of Rs.1O,OO,OO0/- is beyond any rational reasoning and establishes that the investigation is totally false. iii. Nothing has been specified related to the field test kit or change of colour of the sample with test kit or procedure followed while testing with the kit in the Panchanama. pw.l confirms that he has not prepared any test notes while conducting the tests and he has not placed any such notes in the sample papers. pW. 1 also '1zoo41 2 srpr".e court cases 608 t 12004; 2 Sup..-e Court Cases 620 '1199817 Supreme Court Cases 270 26 confirms that he has taken signatures of the accused on the outer covers of the samples but not on polythene covers containing the samples. He also admits that from the polythene covers itself it is not possible to say from which accused the substance was seized. Samples of powder taken was not furnished by the accused. The admissions made by the witnesses in the Cross-examination clearly establish beyond reasonable doubt that the alleged samples collected are not intact and does not bear any identity from whom and from where the samples were drawn and sealed in the covers for sending them to Chemical Examiners iv. The accused persons voluntarily visiting the DRI office and receiving summons and subsequently getting arrested and produced before the Magistrate is false. v. None of the Accused know the details of Methaqualone and some of the accused are not even properly educated. v1 Nothing has been recovered from the personal search of Al. There were no details of weighing scales used in the search & Seizure Operations. There is no evidence as to how the samples were drawn from the alleged seizure when the weighment of the samples is in grams to kilograms. There is no evidence as to how the small quantities of contraband substance was measured during Search & Seizure. The witness PW. 11's deposition in Cross- 27 examination that he has carried weighing scale to IICT premises during the search & seizure is not corroborated by any material evidence on record and it is only an afterthought. vii. There is no evidence that the Panch witnesses have signed & authorized on the test Memos prepared while sampling the alleged seized contraband substances. As per PW.2, in his cross- examination the identity slips were not found affrxed to the envelops containing the samples. There is no evidence on record that the DRI official have not carried any covers, polythene bags & gunny bags for sampling the alleged contraband substance found in both the locations (neepa Chem & Masanapal\r) and the same was also asserted by multiple witnesses. There is no evidence on record which establishes that DRI oflicials have carried heat sealing equipment for sealing the sampled po\rthene covers. Also the covers containing the samples were not pasted and were only stapled with all the signatures on one side and DRI seal on the other side of the covers. PW. I confirms that the Panch Slips were not placed inside the sample covers. viii. As per PW. 1l there is only one Brass Seal in DRI Hyderabad oIEce. On 10.05.2002, two locations were simultaneously searched. One at Neepa Chem Laboratory Private Limited in Bibi Nagar and other at residence of Sri M.Madhusudan Reddy at Masanpally 28 Village. As per the complaint, two teams were deployed after alleged meeting at 5:30 A.M. on 10.O5.20O2, wherein both teams started their search & seizure around 8:30 A.M. and both teams reached DRI office at 8:30 p.m. & 9:30 p.m. Both the locations have approximately 2OO k.m distance between them and they have to pass through Hyderabad. With one brass seal of DRI, the Panchnamas, sampling of contraband substances, statements recorded simultaneously at both the locations on the same day is beyond comprehension. ix. There is no evidence on record that the Neepa Chem Labs Private Limited has any association with A1. Al1 the invoices & bills of the chemical substances are in the name of Neepa Chem Labs Private Limited and there is no correlation on factual and evidence basis as to how these invoices can be used to implicate the accused alleged to have been present at location of Neepa Chem Private Limited.

30. In this case, even the evidence of PW.5O would disclose that he received information from his subordinates through chits and after preparing the chits as in 8x.P295, he destroyed the said chits. If PW.SO really received the information from his subordinates either by way of chits or he reduced into writing on the chits whenever his subordinates gave information about the present 29 offence, PW.50 ought to have preserved the said chits to corroborate his evidence that he sent the gist of information as in Ex.P295 to his superior ofhcer after veri$ring the said chits. Section 42 of tlrre NDPS Act which is a mandatory one, is not complied.

31. The evidence of the seizure offrcers PW. I and PW.5 is that they tested the powder found in the factory at Bibinagar and also at Masanpally with the help of the testing kit and the said powder tested positive for Methaqualone. Thereafter, the said samples were sent for analysis and examiners also opined that the sample is of Methaqualone and submitted their report. PW. 1 and PW.S are not experts who can give opinion that the said powder is Methaqualone with the help of the testing kit available with them. It is not even explained by the prosecution that they are competent to test the narcotic substance and give their opinion with regard to the same. The chemical name of Methaqualone is mentioned in Schedule-I under the caption by 'Psychotropic Substances'in NDPS Act. As per the same, the chemical name of 'Methaqualone'is "2-Methys-3- O-toyl-4 (3H)-quinazolinone". But experts have not stated that they found the same chemical in the said powder. If the said chemical name is not found in the experts report, the opinion given by the experts that it is 'Methaqualone'cannot be accepted. 30

32. The search and seizure is illegal since the complainant has not complied with the provisions of Sec.42 of the NDPS Act; the charge leveled against A,3 also cannot be sustained. Some powder and incriminating material was recovered from the drawer and the cup-board of A.4 in the oflice and that itself is not sufficient to come to a conclusion that A.4 conspired with A. I to A3 and participated in the conspiracy in preparing the Methaqua,lone. The complainant has to prove that A.4 knew Methaqualone lSa narcotic substance and the possession of it or providing inlormation regarding the improvement in the quality of Methaqualone is an offence under NDPS Act. No evidence is adduced to substantiate the same.

33. The allegation made against A.5 and 4,6 is that they let out their premises for the purpose of manufacture of Methaqualone. The case of the prosecution is that one day prior to their search, A.5 and A.6 came to know that A. I to A.3 were manufacturing the Methaqualone in the said premises. If so, how did the DRI officials come to know what happened on the previous night on O9.O5.2OO2 in Taj Banjara Hotel, where A.5 and ,{6 are alleged to have met A. I to A.3 and discussed as to why Methaqualone powder was being manufactured in their premises. Hence the evidence adduced on 31 this aspect by the prosecution with regard to knowledge of A.5 and ,{6 of manufacturing Methaqualone cannot be believed

34. Charges leveled against A.7 are that he played a role in getting raw material and the machine and got the same lxed at Masanapally and other places and allowed the premises for conversion of Methaqualone powder into tablets. But, the evidence which is on record is not sufficient to come to a conclusion that A.7 had knowledge that Methaqualone is a Narcotic Substance and the preparation oi Methaqua-lone in his cattle shed, is an offence. Apart fmm it, the search itself is illegal.

35. Charge leveled against A.8 is that he was found in the Neepa Chem Laboratory. As per the case of the prosecution he is the person who was managing the manufacturing of the Methaqualone in t}re said Neepa Chem laboratory- But, the evidence which is on record is not sufficient to come to a conclusion that A.8 had knowledge that the product which was being manufactured in the said factory is Methaqualone.

36. The offence alleged against A. 10 is that he is the person who was present at the cattle shed of Masanapally village participating in the manufacturing process at that place. It may be that pW. 1O was present at that place and he was indulging in the 32 manufacturing process, but, the evidence on record is not sufficient to come to a conclusion that A.1O had knowledge that Methaqualone is a Narcotic substance and its manufacturing is an offence under NDPS Act.

37. The allegations made against A9 is that he allowed the use of his vehicle to carry Methaqualone powder from Neepachem Laboratories to Masanapally and he also stored Anthranalic acid in the godown of Rehman. The complainant has not placed any material to show that A.9 had knowledge that the Anthranalic acid is Narcotic substance and storing the same is an offence.

38. The allegation made against A. 11 is that while acting as a driver of A. 1, he actively participated in getting raw material in connection with the manufacturing of Methaqualone and he transported the Methaqualone from the factory premises to the Masanapally village using Tata Safari vehicle belonging to A. 1. But, the complainant has not placed any evidence to show that A. 11 had knowledge that the powder which is being carried by him from the factory to Masanapally is Methaqualone.

39. The learned Public Prosecutor mainly places reliance on the Judgment of the Honourable Supreme Court in Jagdish Budharoji Purohit's case (supra 7l and argued that once the spot test was 33 determined as Methaqualone, the Honourable Supreme Court held that the said {rnding initially about the substance would suffice. The Apex Court held in the facts of the case that the chemical examiner received the samples in a sealed condition. In the 313 Cr.P.C. examination, the accused did not state about closing the factory and taken over by someone else. The facts in the Jagdish Budharoji Purohit's case differs from the facts on hand. All the accused denied being involved in manufacturing any kind of Narcotic substance. Further, the trial Judge has also found favour with the defence version that the sealing of the sanrples was not proper ald tampered with.

40. In Ravi Sharma v. State (Government of NCT of Delhif and anothers, the Hon'ble Supreme Court held that while dealing with an appeal against acquittal, the appellate court has to consider whether the triai Court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. t 12022; 8 srpr".e court cases 536 34 4L. ln Ghureg Lol u. State of Uttar Pradesh' the Hon'ble Supreme Court after referring to several Judgments regarding the settled principles of law and the powers of appellate Court in reversing the order of acquittal, held at para 70, as follows: "7O. In the light of the aboue, the High Court and other appellate Courts should follow the uell-settled pincipLes crystalli-zed by number of Judgments if it is going to ouemtle or otherutise disturb the tial court's acquittal:

1. The oppellate court may onlg ouemtle or oth.enttise disturb the tial court's acquittal if it has "uery substantial and compelling reason s" for doing so- A number of instances aise in uhich the appellate court u.tould haue 'uery substantial and compelltng reasott-s" to di.scard the trial court's decision. "Very substantial and compelling reasons" eist u-then: i) Tle fial court's anclusion with regard. to the facts is palpablg wrong: law; ii) The trial court's decision uLas based on an erroneous uieut of iii) The tnd court's judgment is likelg to result in "graue iu) The entire approach of the trial court in dealing uith the miscarriag e of justice " ; evidence utas patentlg illegal; u) The tial court's judgment was manifestlg unjust and unreasonable; ui) The tial court has ignored the euidence or misread the mateial euidence or has ignored mateial documents like dying declarations/ report of the ballistic expert, etc. uii)This list is intended to be illustratiue, not exhaustiue. 2. Thz appellate court must alutags giue proper ueight and- consideration o the findings of the tial court. 3- If tuo reasonable uieuts can be reached- one that leads to High Courts/ appellate courts -the acquittaL the other to conuiction must rule in fauour of tlLe accused."

42. As discussed above, since the violation of Sections 42 and 50 of NDPS Act are apparent, and the chemica,l formula of t 12OO81 10 supreme Court Cases 450 35 Methaqualone was not specified in the FSL reports, the finding of the learned Sessions Judge cannot be interfered with.

43. Accordingly, Criminal Appeal is dismissed. \ To, //TRUE COPYII Sd/. M. MANJULA DEPUTY EGISTRAR SE ON OFFICER

1. Ih" {e^tropglrlqn Sessiotrs Judge, Hyderabad. (with records, if any) 2. One CC to Sri Dominic Femandes, Advocate [OPUC] 3. One CC to Sri M. Govind Reddy, Advocate IOPUC] 4. One CC to Sri T. Srikanth Reddy, Advocate [OPUC] 5. One CC to Sri O. Kailashnath Reddy, Advocate IOPUCI ' 6. One CC to Sri Srinivas Chamarthy, Advocate tOpUCl 1. 9nu QQ to !mt, D. Sangeetha Reddy, Advoca-te [OP[JC] 8. One CC to Sri Avaneesh Narapuraju, Advocate TOPUC] 9. One CC to Sri B. Nalin Kumar, Advocate [OPUC] 10.One CC to Sri S. Venkateshwar Reddy, Advocat-e [OPUC] 1 1 . One CC to Sri C. V. S. S. Srimanth Ktimar, Advocdte [OptJCl 'l2.Two CD Copies - 6\ HIGH COURT DATED:1 010112025 ORDER CRLA.No.1719 of 2005 't t{E SIr 14 ? 3 0t FEe 2025 (r T h F srJ.t r C I DISMISSING THE CRIMINAL APPEAL