The High Court · 2025

Judgment

The prescnt criminal appeal is prcferred 1l thr: appellant/ accused under Scction 37 4(21 of Cr.P.C., aggrievec[ lrv the judgment dated 10.04.201i1 in NDPS SC No.29 0f 2012 0n the lltc o[ lhe learned I Additional Sessions Judgc, Medak at Sangareddy, $'herein and where under lhe act:trsed / appe llant u'as found guilry* for the offence punishable undt'r Sectiot] 2O(a) of NDPS Act, 1985 artcl wrrs sentenccd to undergo rigorous imprisonme nt for a period of on'- vt'ar and to pay a fine of Rs. 1o,o()r)/ in default to undergo simple rllrlll isonnrent for a period of three nronths.

2. Heard Sri Pzrtle Sriharinath learned crtunsei for the appeilant atrd Sri tr.Ganesh, lcarned Assistant Pub it' Prosecutor for the respondent/ Slatc.

3. The I:tcts that germane for registration oI t]re sessions case are that on 23.01 .2OL2 aL about 08.0o trours PW1/l>-rlicc constable of PS, Sirgapur lorlged Ex.P1 complaint complaining ttrrrt on the credible information that ganja was being cultivatcd in MalhrLpur Village, their team searched Malhalpur Village of Kalher M;'r tl<lal and found cultivation of ganja plants numbering to 1,0O,OOO grou n to a height of 3 to 3 Y'z feet in the fields of the accused in an extcr't of Ac I OO Gts'' Page 2 of l0 -n in Sy.No.45/e and collected four samples of contraband ganja each weighing 10O grams in the presence of PW4 and one Balaiah, sent the samples for laboraLory analysis to the Government Chemical Examiner, Regional Prohibition & Excise Laboratory, Nizamabad and got the land ploughed with tractor bearing No.AP 23 AC O091 driven by PW5. The police registered FIR No. 14 of 2Ol2 on the hle of PS, Sirgapur I Ex.P7 . Upon obtaining positive report from the cxpert/Ex.P8, the police effccled arrest of the accused on 14.05 2012 and upon completion of invcstigation, the police laid charge-sheet for the offence under Section 20(a) of NDPS Act, 1985 against the accused alleging that the accused v\2. Karra Pomya cultivated contraband Ganja illegally in his agricultural fields and thus, he committed the offence punishable under Section 20(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.29 of 2012.

4. Upon completion of required procedural formalities, the trial went on and PWs. I to 6 were examined and Exs.P1 to P8 and MO I were marked on bchalf of the prosecution. The complainant is PW 1 , another constable who also participated in the raid was 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 officer. -- l'age .t ol' l0

5. Basing on the evidence adduced, the tr--r'Ll Court framed thc poinls th:rt rt hether the prost:cution provcd the gr.ri t ,:)f the accused for the olfence punishable under Section 2O(a) of NDt'S Act, 1985, with u,hich he rvas charged, bcyond all reasonable doltlrt and to whal rcsult. The trial court answered tl-rc first point in favour of the prosecution by placing reliance on thc oral and docutltentary evidence adduced by the prosecution and found the appe ilant guilty and sentcnccd him to undergo rigorous imprisonment for otre l7ear and lo pay a frne of Rs.lO,OOO/ and in delault, to Ltndergo simple imprisortmcnt for a pcriod of threc months for [he ciience pr-rnishablc under Section 2o(a) of NDPS Act. Though the tria- oourt recorded contradictions in the evidence of PWI about his acconrpanying with SI after lodging the report/ Ex Pl ar-rd details of cultivator of the ganja and the extent of the land held that they u,ould not be corLsidered material to disbelieve the prosecution case and to believe thai a false case was foisted against the accused Conscqucnt thercof, thc :;econd point was also answered in favour o[ thc prosccutior-r.

6. Challenging the said judgment, the ai:cused/ appellant preferred the present criminal appeal mainly corr tending that the findings of the trial Court are erroneous, baseless, based upon the contradictory statemcnts of witnesses, panchanami: rvas conducted without any supportive evidence, PW6 failed to follori' the procedure as Page 4 of l0 .:... 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 reasonable doubt as to planting and tampering of the samples, delay in sending the samples for examination was not explained, there is no evidence to show that Lhe seals of the samples were intact and that the accused ought to have produced before a gazetted ofhccr rather than the excise ofhcials under Section 50 of the Act to safeguard, check misuse of power and protect the innocent. He further contended that NDPS is a Special Act and wiLhout contemplating the procedure as required undcr Section a2(ll of the NDPS Act and without adhering to the mandatory requirement under Section 50(2)(a) of the NDPS Act, conducting the prosecution against the appellant amounts to abuse of process of law and without going into the said aspect convicting the appellant for the offcnce punishable under Section 20(a) of NDPS Act amounts to abuse of process of [aw. [rarned counsel for the appellant, n,hile contcnding above, relied upon the decisions of Hontrle Supreme Court rcndered 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 field of the appellant, it cannot be inferred that Section a2(ll(al of the Act has been complied with by the respondent police. He also relied upon Section 50 of the Act ' atR 2oo+ sc 4 t70 + #;-1 ;ir q!tf!" .je+'+?"-.I. *. :l .1 I']ale 5 ol l0 submitling that if a person is being bodily search:d, ofhcers must inform Lhc individuzrl of thcir right to be searched bt ftrre a Magistrate - or a Gazettcd Oificcr and in view of absence of such nlbrmation being passed on lo the accused. as contemplated under' ,2'.1', 5sch search and recovcry cannot stand for legal scrutiny. AS r:rlnritted by PWs.4 and 6, in thc instant case, the searches were condu,ll.ec in the absence ol the appt:l lzrn t / accused. Furthermore, the medialc,r viz. Balaiah was not cxamint:d l>y thc prosecution for the reasons bt:st knowtr to them. PW3, thc t;rutciz,tl rvitness, dicl not support the case t,l the prosecutiot-t ancl turnccl hostilc making the prosecution case n-'isr:ral;le. Stating Lhus, learned counsel for the appellant seeks lo set aside the impugned judgment and to allow the present crimi ral appeal. The prosecution also lailed to adhere to the procedure co rtemplated under Section 52A of thc Act while disposing the scized narcoti<: substances and vehicle s try maintaining proper documentation.

7. On the other hand, the learned Assis(ant Public Prosecutor vehemently opposed the appeal mainly r:r n I end ing that the trial court's order hnding the accused guilty u'ar; baseci on well established legal principles and supported by matr:rirrl evidence and hence thc sam(: cannot be disturbed. Further, tlre grounds urged herein havc no force warranting interference of this (lourt. He further submits that in the open eyes of public, the appelli: nt is alleged with :.rr{iXi*litii.l* serious allegations of cultivating 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 of Section 42(l\ or 50 of the Act have nol been comp[ed with. Basing on the clinching and corroborative evidence the trial Court found the appellanL 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 hndings of the trial Court. Stating thus, learned Assistant Public Prosecutor seeks to dismiss the presenl 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 cvidence of PWl and contents of Ex.Pl the trial Court found [he appellant guilty though there are materiai 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 not 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 (supral that the general information about smuggiing into India which led the BSF Page 7 of l0 Commandant to organize nakabandhi cannot be equert':d to the receipt of information within the contemplation of Section 421( t') of the Act and that Section 43 of the Act is attracted in the instzr:lt case but not Section 42 of the Act as it is not a case of entering ir.Itrl or searching any building, convevance or enclosed place and hent.r ' applicability of Section 42 of tne Act is doubtful to such cases of searr:hing fields u'ith regard to cullivation ol Ganja' g. For the sake of brevity Section 42(11 of NDPS Act is extracted hcreunder : "42. Pol,'er of entry, search, seizure and arrost without warra n I or.l.llhorisalion' (1)Any such ofhcer (being an officer supcrior r11 r'allk to a peon, sepoy or consLable) of ttre departments of central excise' narcotlcs, customs, revenue intelligence or any other lepartment of the Central Government including paramilitaly forr:t:s or armed forces as is empowered in this behalf by general or s1;ecial order by thc Ccntral Government' or a;r5' such ofhcer (bcir-rg rrn olficcr =ip.rin. in rauk to a peon, sepoy or constable) of thc revenue' rr: of a State d-.,.!g= .or-r,.,r1, excise, police or an1 o.th9r Gov"ernment a" is empo*ered in this behalf by generitL 1)r special orde. ut the State Government, if he has reason tc believe from tal(en p.a"urr" knowledge or information given by any persorl 'Lnd or l slchotropic down in writing lhat any narcotic drug' subs|ance, or controlled substance in respect of whir:h an offencc p""i"f',"Uf" under this Act has been committed or zrnv rlocument tr other article which may furnish evidence of the c''l amission of such offencc or any illegally acquired property or zrny documenL o. other article which- may furnish evidence of holding any iliegally acqui.ed property which is liable for,seizure or freezing or torfiiture unde. Chaptei VA of this Act is kept or r:oncealed in any building, .o,-t""y^ttt" or enclosed place' may betl"een sunrise and sunset, .{epartrrle - (a)enter into and search any such building' :crveyance or Place; (b)in case of registance, break open any door and r-emove anY obitacle to such entff; Page 8 of l0 -: (c)seize such drug or substance and all materials used in the manufacture thereof and any other articlc 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; (d)detain and search, and, if he Lhinks propcr, arrest any person whom he has reason to believe to have committed any offence punishable under this Act. Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or conLrolled 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 ofhcer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for thc concealment of cvidence or facility for the escape of an offendcr, he may entcr and search such building, conveyzrnce or enclosed place at any time be[ween sunset and sunrise after rccording the grounds of his bclief." l I t

10. The Iields of the appellant were searched in his absence and also in the absence of neighbouring landou'ners, without following the mandatory procedure contemplated under Section 42(l)(al and Section 5O of the NDPS Act. Furthermore, the tractor used to plough the appellant's helds was nol seized, which further weakens the prosecution's case. This Court is of Lhe 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 time of search. The failure of the prosecution to examine Balaiah is a .-*-,.' . -!g**!:{3?!?q=!T"E lBF ---rr- --F :)" -, '- :" Page 9 ol l0 significant lapse and goes to the root of the mattet'. Moreover, PW3 turned hostile and did not support the prosecution in establishing its case- The contradictions in the testimony of PW 1 reveral the loose ends in the prosecution's case, which by themselves are insufficient to sustain a conviction. In the administration o[ crimir Lal justice, it is a we 1l settled principle that t-to person shall be prosec -r Led or convictcd without clcar, cogent, and clinching evidence estatrlisl-ring thcir guilt beyond reasonable doubt. Accordingly, beneht of doubt ought to have been extcnded to the accLlsed by the trial Court. Thc conlradictions in thc prosecution's evidence, coupled rvith the incorrec: interpretation of the proviso to the Speciat Act, though the offence may have social implicatrons, cannot justify a conviction in the abserrcc of substantive and conclusive evidence. In that view of the matter, this Conrt finds it appropriate to hold that the findings recorded lrv the trial Court cannot be given much credence in the absence of r,.:li:rble and strong evidcnce against the appcllant. In such circumstitnces, this Court deems it appropriate to set aside the impugned judgrrLent.

1. 1. In the result, the criminal appeal is alioua:d selting aside the judgment of the trial Court dated lO.O4.2Ol3 in I'IDPS SC No.29 of 2O12, on the h1e of the learned I Additional Sessions Judge, Medak at Sangareddy. Consequently, the appellant is found not guilty of the offence punishable under Section 20(a) of the NDFS Act, and he is Page l0 ol l0 ,1IrI&e acquitted of thc said charge. Sincc the appcllant is already on bai1, his bail bonds stand cancelled. Miscellaneous applications, if any pending, shall stand closed. SD/- M.VIJAYA BHASKER .IOINT RE,GISTRAR //TRUE COPY// ECTTON OFFICER To,

1. The I Additional Sessions Judge, tr/ledak at Sangareddy 2. The Superintendent, District Jail at Sangareddy' Medak District' 3. The Station House officer, Sirgapur Police Station, Sangareddy. 4.TwoCCstothePublicProsecutor'HighCourtforthestateofTelanganaat Hyderabad.IOUT]

5. One CC to Sri Palle Sriharinath' Advocate [OPUC] 6. Two CD CoPies VHiPSL Kr- HIGH COURT DATED: 1710712025 I , 1tli: ( 2 3 5[P 2025 ' 'j.\ ,., \ 'l\ .)_'-'" -. ORDER CRLA.No.357 of 2013 ALLOWING THE APPEAL ..Cd q F*