DHAMLA Vs. STATE OF A P

JUDGEMENT

(1.) This is a petition to quash the FIR in Cr.No.88/2001-02 of Prohibition and Excise Station, Yellareddy, Nizamabad District, registered under Section 8(b) read with Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called "the Act").

(2.) The case of the prosecution is that on 18.9.2001 at about 10.40 a.m., on reliable information about illegal cultivation of Ganja plants in S.No.24/2 of Somaram Village, Inspector of Police and Station House Officer, Yellareddy Prohibition and Excise Police Station, accompanied by Sub-Inspector of Police, visited the place along with panchas and conducted a panchanama and found that approximately 4,855 Ganja plants were raised in 0.05 Gts., of land, which, on enquiry, is said to be belonging to the petitioner, and took samples of the ganja plants of about 100 grams each in sealed bags and destroyed the remaining ganja plants therein, and registered a case in Cr.No.88/2001-02 against the petitioner.

(3.) The contention of the learned Counsel for the petitioner is that since the Excise officials did not follow the procedure prescribed by Section 42 of the Act, which is mandatory, the FIR is liable to be quashed. He placed strong reliance on Roy V.D. v. State of Kerala, AIR 2001 SC 137, where it is held that in collection of material, detention or arrest of a person or search of a building or conveyance or seizure, effected by an officer not being an empowered officer or an authorised officer under Section 41(2) of the Act lacks sanction of law, and is inherently illegal and cannot form the basis of a proceeding in respect of offences under Chapter IV of the Act, and where criminal proceedings are initiated based on such illicit material collected on search, it amounts to abuse of process of Court, and such proceedings are liable to be quashed under Section 482 Cr.PC; and contended that since the record does not disclose that the Excise officials have submitted information to the immediate superiors in writing, the entire proceedings are vitiated and are liable to be quashed. The contention of the learned Additional Public Prosecutor is that since the Government of Andhra Pradesh in G.O. Ms. No. 184, Revenue (E) dated 14.2.1996 empowered the Officers of the State Excise Department including Enforcement Wing not below the rank of Sub-Inspectors and all officers of the Police Department not below the rank of Sub-Inspector to exercise the power under Section 42 of the Act, and since the search and destruction was made under Section 48 of the Act by the Inspector of Police, who is a Gazetted Officer, there are no grounds to quash the proceedings.