The High Court · 2025

The State of A P' through rep' by State Public Prosecutor' High Court of A P at Hyderabad ' ...RESPONDENT/COMPLAINANT Counsel for the Appellant: Sri Palle Sriharinath counser for the Respondent: sri E. Ganesh, Assistant pubric prosecutor The Court delivered the following: JUDGMENT i t i i I i 'i ._3:j'.6Fs 1tf.?!!;E7 -/ THE HON'BLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL APPEAL No.35 9 0F 2()13 JUDGMENT: The present criminal appeal is preferred by the appellant/ accused under Section 324(2) of Cr.p.C., aggricved by the judgment dated 10.04.2013 in NDpS sc No.43 0f 2012 0n rhe file of the learned I Additional Sessions Judge, Medak at Sangareddy, rvherein and q.here under the accused/appellant was found guilty for the offence punishable under Section 2O(a) of NDpS Act, 19g5 and \4.as sentenced to undergo rigorous imprisonment for a period of one 1.ear ancl to pay a Iine o[ Rs.1o,00o/- in ciefaurt to unclergo simpre imprisonment for a period of three months.

2. Heard Sri palle Sriharineith learned counsel for the appcllant and Sri E.Ganesh, learned Assistant public_ prosecutor for the respondent/ State

3. The facts that germane for registration of the sessions case are that on 23 01.2012 at about og.o0 hours pw1/porice constabre of PS, Sirgapur loclged Ex.p1 complaint complaining that on the credible information that ganja was being cultivated in Malhapur Villag, their team searched Malhalpur Village of Kalher Mandal and found cultivation of ganja plants numbering to 12,5OO grown to a height of 3 to 3 % feet in the fields of the accused in an extent of Ac.O.05 Gts., in I It".- I I l I I i I I l I : i i I i , t i , I i I l I I i i Page 2 of l0 Sy.No.48/U/2 and collected four sarnples of contraband ganja each weighing 1OO grams in the presence of PW4 and one Balaiah' sent the samples for laboratory analysis to the Government Chemical Examiner, Regional Prohibition & Excise Laboratory' Nizamabad and got the land ploughed in the presence of mediators with tractor bearingNo.AP23AC00gl.Accordingly,thepoliceregisteredFIR No.11 of 2012. lJpon obtaining positive report from the expert/Ex'P8' the police effected arrest of the accused on 14 05'2O12 and upon completion of investigation' the police laid charge-sheet for the offence under Section 2O(a) of NDPS Act' 1985 against the accused aileging that the accused vtz' Karra Chamoli Bai cultivated contraband Ganja illegally in her agricultural fields and thus' she committed the offence punishable under Section 2O(A) of NDPS Act' 1985' The trial Court' upon taking cognizance of the offence with which the accused was charge-sheeted, assigned NDPS SC No'43 of 2O12'

4. Upon completion of required procedural formalities' the triai went on and PWs l to 6 were examined and Exs'Pl to P8 and The comPlainant is MOl were marked on behalf of lhe prosecutron' in the raid was PWl, another constable who also participated examined as PW2, PW3 is the eyewitness' PW4 is the mediator for scene of offence panchanama, PW5 is the driver of tractor and PW6 is the investigating ofhcer' -Ewl' Page 3 of I0

5. Basing on the evidence adduced, the trial Court framed the points that whether the prosecution proved the guilt of the accused for the offence punishable under Section 2O(a) of NDpS Act, 19gS, with which she was charged, beyond all reasonable doubt and to what result. The trial Cour[ answered the first pornt in favour o1. the prosecution by placing reliance on the oral and docurnentary evidence adduced by the prosecution and found the appellant guilty and sentenced her to undergo rigorous imprisonment for one year and to pay a fine of Rs.10,00O/_ and in default, to undergo simple imprisonment for a period of three months for the ofl.ence punishable under Section 2O(a) of NDpS Act. Though the trial Court recorded contradictions in the evidence of pW1 about his accompanying with SI after lodging the report/Ex.pl and details of cultivator of thc ganja and the extent of the land herd that they wourd not be considered material to disbelieve the prosecution case and to believe that a false case was foisted against the accused. Consequent thereof, the second point was also :rnswered in favour of the prosecution.

6. Challenging the said judgment, the accused/appellant preferred the present criminal appeal mainly contending that the findings of the trial Court are erroneous, baseless, based upon the contradictory statements of witnesses, panchanama rvas conducted without 1ny supportive evidence, pw6 failed to follow the procedure as I \ contemplated under Section 42(l\ and' 50(2)(a) of NDPS Act' 1985' delay of 4 months in depositing the samples before the Court creates a reasonabre doubt as to pranting and tampering of the samples, delay in sending the samples for examination was not expla'ned' lhere is no evidence to show that the seals o[ the samples were intact and that the accused. ought to have produced before a gazeLted' ofhcer rather than the excise offrcials under Section 5O of the Act to safeguard' check misuse of power and protect the innocent' He further contended that NDPS is a Special Act and without contemplating the procedure as required under Section a2$\ of the NDPS Act and u'ithout adhering to themandatoryrequirementunderSection5O(2)(a)oftheNDPSAct' conducting the prosecution against the appeliant amounts to abuse of process of law and without going into the said aspect convicting the appellant for the offence punishable under Section 20(a) of NDPS Act amounts to abuse of process of law Learned counsel for the appellant, while contending above' relied upon the decisions of Hon'ble Supreme Court rendered in Durgo Bai Vs' State of Punjabl' He further submits that in view of the fact that the respondent police have conducted searches in the agricultural held of the appellant' it cannot be inferred that Section a2(i)(a) of the Act has been compiied with by the respondent police' He also relied upon Section 5o of the e1! I ntn 2oo4 sc 41zo T@ Page 5 of l0 submitting that if a person is being bodily searched, officers must inform the individual ol their right to be searched before a Magistrate or a Gazetted Ofllcer and in view of absence of such information being passed on to the accused, as contemplated under law, such search and recovery cannot stand for legal scrutiny. As admitted by pWs.4 and 6, in the instant case, the searches were conducted in the absence of the appellant/ accused. Furthermore, the mediator viz. Balaiah was not examined by lhe prosecution for the reasons best known to them. PW3, the crucial witncss, did not support the case ol the prosecution and turned hostile making the prosecution case miserable_ He lurther submits that the prosecution also failed to adhere to the procedure contcmplated under Section 52A of the Act while disposing the seized narcotlc substances and vehicles by maintaining proper documentation. Stating thus, learned counsel for the appellant seeks to set aside the impugned judgment and to allow the present criminal appeal.

7. On the other hand, the learned Assistant public Prosecutor vehemently opposed the appeal mainly contending that the trial court's judgment finding the accused guilty was based on u.ell_ established lcgal principles and supported by materral evidcnce and hence the same cannot be disturbed. Further, the grounds urged herein have no force warranting interference of this Court. He further t t Page 6 of l0 ,\ submits that in the open eyes of public' the appellant is alieged with serious alregations of curtivating contraband ganja, which substance is a serious threat to the society and hence' the appellant cannot be let off by taking the plea that the provisions o[ Section 42(1) or 50 of the n the clinching and Act have not been complied with' Bastng o corroborative evidence the trial Court found the appellant guilty' The land, wherein the contraband has been cultivated is proved to be of the accused through revenue records' No perversity can be attributed to the findings of the trial Court' Stating thus' learned Assistant Public Prosecutor seeks to dismiss the present appeal' '

8. This Court heard the rival contentions advanced on either side and perused the material on record including the judgment of the trial Court. Upon careful examination of the same' this Court is seized of the fact that basing on the evidence of PWI ancl contents of Ex Pl the trial Court found the appellant guilty though there are material contradictions in the evidence of PW1 about his accompanying with SI after lodging the report/Ex'Pl and details of cultivator of the ganja and the extent of the land stating that they would no. be considered material to disbelieve the prosecution case and to believe that a false case was foisted against the accused' The trial Court also not considered the point which has been held by the Hon'ble Supreme Court in Durgo Bai Vs. State of Punjab (supra) that the general Page 7 of l0 information about smuggling into India which led the BSF Commandant to organize nakabandhi cannot be equated to the receipt of information within the contemplation of Section a,2(l) of the Act and that Section 43 of the Act is attracted in the instant case but not Scction 42 of the Act as it is not a case of enterihg into or searching any building, conveyance or enclosed place and hence, applicability of Section 42 of the Act is rjoubtful to such cases of searching fieids with rega rd ro cultivarion of Canja.

9. For thc sake of brevity Section 42(ll of NDpS Act is extracted hereundcr '42. power of entry, search, seizrre and arrest without warrant or authorisation. (l)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 o. urry oah* ;;partment of the Central Government inctudirig p*"-ilid;-f;i o. ar-.d forcgs as is empowcred in this behili by s;;;;j o".'lii.irt o.a.. by the Central Government ::T:1"1I: .,-,k .. . o..", lifrI;":1":ffi::,t;,if"T,,",ff:: orugs control. excise, police or ar]y other department of a State Governmenr as is empowered in this behaf b;;;n;;al or special order of the State Government, if he has ..r""# to b"li"rr" f.o- persons knowledge or information given by any person and taken down in writing that a,ny narcotic a-g, 'o. psychotropic substance, or controlled substance in respeciof whi& Ln ofience punishable under this Act has been committed or arry documenL or other article which may furnish evidence of the commission of such offence _or ar-ry illegally acquired property or any document or other article which may furnish evidenie of holding any illegally acquired property which is liable for seizure or f.eering oi forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyarce or enclosed place, miy between sunrise and sunset, (a)enter into and search any such building, conveyance or place; i \ T Page 8 of l0 (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 I he manufacture thereol ,, a"Jv oir,". a-rticle and alty animal or to believe to be liable to convevarce which he h'"' [i"ot ;y document or oiher a-rticle confiscation under this Act ;; which he has reason to oJi"ut niay furnish evidence of the under this Act or [urnish commission of any oftence p;i;t'i; evidence of holding urv irr"gJrv l.qri."d p.op".ty which is liable ;;i;""'-i''g o' roi[ii'* under'chapter vA or this Act: ;;;:";; anddrru (dldetain and search' and' if he thinks proper' arrest any ' u"ti"t'" to have committed any nerson whom he has reason-io iiflr,." Prni"nuble under this Acl' Provided that in respect of holder of- a^ Iicerrce for -slbstances or any r-ule or po*". shall be exerciscd by an manufacLure of manulactured dtt-tg" or psychotropic or controlled substances gt"'"a inder- this .Act order made there under, ",J Iin.". t-rot below the rank of sub-inspector' Provided further that if such officer has reason to bclieve 'tt-tiftoti""tlon carnot be obtained that a search warrant ot without affording oppott"t'ity for the concealmcnt o[ evidence or h9 may entel:-1nd search facility for the escape of "t'ofit"itt' such building, conveyance or enclo"ed Place at aly time between sunset and sunrise after recorJing ttre grounds of his belief."

10. The helds of the appellant were searched in her absence and also in the absence of neighbouring landowners, without following the mandatory procedure contemplated under Section a2(1)(a) and Section 50 of the NDPS Act' Furthermore' the tractor used to plough the appellant's helds was not seized' which further weakens the prosecution's case. This Court is of the considered opinion that the trial Court ought to have examined the material and evidence on record more meticulously, particularly in view of the non-examination of one of the mediators, Balaiah, who was stated to be present at the ,/t I -a:'i :,: I I t t Page 9 of l0 time of search. The failure of the prosecution to examine Balaiah is a significant lapse and goes to the root of the matter. Moreover, pW3 turned hostile and did not support the prosecution in establishing its case. The contradictions in the testimony of pW 1 reveal the loose ends in the prosecution,s case, which by themselves arc insufficient to sustain a conviction. In the administration of criminal justice, it is a well-settlcd principle that no person shall be prosecr-rted or convicted without clear, cogent, and clinching evidence establishing their guilt beyond reasonable doubt. Accordingly, benefit of doubt ought to have been extended to thc ar:cusccl by the trial court. The contradictions in the prosecution,s evidence, coupled with the incorrect interpretation of the proviso to the Special Act, though the offence may have social implications' cannot justify a conviction in the absence of substan tive and conclusive e vide.ce. In that view of the matter, this Court finds it appropriate to hold that the findings recorded by the trial Court cannot be given much credencc in the absence of reliablc and strong evidence against the appellant. In such circumstances, this Court deems it appropriate to set aside the impugned judgment. 1 1. In the result, the criminal appeal is allowed setting aside the judgment ol thc trial Court dated IO.O4.2Ol3 in NDpS SC No.43 of 2OI2, on the file of the Iearned I Additional Sessions Judge, Medak at Sangareddy. Cor-rsequently, the appellant is found not guilty of the Pagc t0 of 10 offence Punishable under acquitted of the said charge his baii bonds stand cancelled pending, shall stand ciosed Section 2O(a) of the NDPS Act' and he is Since the aPPellant is alreadY on bail, Miscellaneous applications' if any SD/ M. RAMANA KRISHNA JOINT REGISTRAR ,TRUE COPY// SECTION OFFICER I I To,

1. 2 3 4 q 6 The I Additional Sessions Judge Medak at Sanga Reddy' The Superintendent' Chenchalguda' Women Central Prison at Hyderabad' The Station House Officer, Sirgapur Police Station' Sangareddy Two CCs to the Public Prosecutor' High Court for the State of Telangana at Hyderabad.[OUT] One CC to Sri Palle Sriharinath' Advocate [OPUCI Two CD CoPies VH/gh I I I i I I t I I I I : t 1 I t , HIGH COURT DATED: 17t|tt2O2S i . .'^ 1Y l \, 02 SEP 2025 ii \- JUDGMENT GRLA.No.359 of 2013 ALLOWING THE APPEAL I I g