SADULA ODELU Vs. STATE OF A P

JUDGEMENT

(1.) The appellant/accused was convicted by the lower Court under Section 8(b)/20(a)(i) of the Narcotic Drugs and Psychotropic Substances Act (in short, the 'NDPS Act') and was sentenced to rigorous imprisonment for six months and fine of Rs.5,000/-. Questioning the same, the accused filed this appeal. It is alleged that the accused was cultivating 411 Ganja plants in Ac.1.13cents in S.No.425/B of Rachepalli Village and that when the Excise officials along with Revenue officials raided the land, it was detected by them on 20.11.2001. Plea of the accused is one of total denial and not guilty. During trial in the lower Court, both the mediators, PWs 1 and 2 and the Village Officer PW3, turned hostile to the prosecution. The lower Court ultimately found the accused guilty of the charge.

(2.) It is contended by the appellant's counsel that as per Ex.P5-Copy of Pahani, S.No.425/B consists of Ac.2.26 guntas, out of which Ac.1.13 guntas is noted to be in possession of Sadula Lingaiah and Ac.1.13 guntas is noted to be in possession of the accused by name Sadula Odelu, S/o. Mallaiah and that there is no evidence to show on which part of S.No.425/B, land of the accused is located and in which side of the said survey number, cultivation of Ganja is there. It is further contended that when PW3 who is the Village Officer, turned hostile to the prosecution, there is no evidence on record to show that the land from which 411 Ganja plants were seized, belongs to the accused. PW4 is the then Mandal Revenue Officer, Jammikunta Mandal, who accompanied the Excise officials during raid. He says that he accompanied Excise officials to Mallannapalli village to the fields in S.No.425/B, out of which Ac.1.13 guntas was found to be in possession of the accused and that they found 411 Ganja plants grown in the midst of cotton plants. Ex.P4 is Panchanama prepared at the scene. It reads that the officers enquired Village Administrative Officer in the presence of PW4 and that the Village Administrative Officer informed that the said land in S.No.425/B is measuring Ac.2.26 guntas and that out of the said land, Ac.1.13 guntas of land is in possession of Sadulu Odelu and that the said Ganja plants are in the land of Odelu, which came to his share. Boundaries of the said land are also noted in Ex.P4. It is contended by the appellant's counsel that boundary owners of the said land were not examined by the prosecution. When the prosecution intended to prove location of the land and possession of the land by examining Revenue officials and by production of Pahani, it may not be necessary for the prosecution to examine boundary owners of the land also. PW3 though turned hostile to the prosecution to some extent, deposed in his Examination-in-Chief that the accused owns approximately Ac.2.00 of land in S.No.425/B. There is no cross-examination of PW3 on this aspect by the defence counsel in the lower Court. In any event, it is not the prosecution case that there were 411 Ganja plants in the entire land of Ac.2.26 guntas, but Ganja plants were there only in Ac.1.13guntas, which is in possession of the accused. PW4 in cross-examination deposed that the current year Pahani is maintained by the Village Administrative Officer and that they ascertained the survey number with the help of Village Administrative Officer. Even during trial, the Village Administrative Officer as PW3, deposed that the accused is having approximately Ac.2.00 of land in S.No.425/B.

(3.) It is further contended by the appellant's counsel that there is no compliance of Section 42(2) of the Act in this case. PW5 is the then Excise Inspector, Jammikunta Excise Station, who raided the land of the accused and detected the offence. He says that on 20.11.2001, he received information about illegal cultivation of Ganja at Rachepalli, which is hamlet of Mallannapalli Village. It is contended that PW5 did not speak about reducing the said information in writing and sending the said information to his immediate superior before proceeding to the land and that failure to comply with Section 42(2) of the Act vitiates the prosecution case as the said provision is mandatory. It is further contended that there is non-compliance of Section 57 of the Act also. There is no dispute that Section 57 of the Act is not a mandatory provision and any failure to comply with the same, does not vitiate the trial. The petitioner's counsel placed reliance on State of Karnataka Vs. Dondusa Namasa Baddi1 and RAJENDER SINGH Vs. STATE OF HARYANA2 of the Supreme Court in support of his contention on Section 42(2) of the Act. This point relating to non-compliance of Section 42(2) of the Act was not raised by the defence counsel in the lower Court. Therefore, the lower Court had no occasion to consider the said aspect. Placing reliance on MEGHAVATH KISHAN FAKEERYA Vs. STATE OF A.P.3 of this Court, it is contended by the appellant's counsel that since it is purely a question of law, it can be advanced at any stage of the proceedings. No doubt, the question relating to non-compliance of Section 42(2) of the Act would be purely a question of law, in case facts relating thereto are there already on record; otherwise it becomes a mixed question of fact and law. Further placing reliance on Mankena Rangaiah Vs. State of A.P.4 of this Court, it is contended that when the prosecution was unable to produce positive evidence relating to the compliance of the mandatory provisions under Section 42(2) of the Act, there is no duty cast upon the accused as such, to put such questions seeking further clarification, filling up such lacuna in the version of the prosecution. In that case, there was no evidence of the Excise officials (PWs 2 and 3) about compliance of mandatory provisions.