Non-compliance with mandatory provisions under the NDPS Act does not vitiate the trial but renders the recovery suspect. The burden of proving a satisfactory explanation for possession lies with the accused.

JUDGMENT :

Challenging the judgment, dated 23.02.2010 in NDPS Sessions Case No.4 of 2008, on the file of Special Sessions Judge for Trial of the Cases under the Narcotic Drugs and Psychotropic Substance Act, 1985-cum-I Additional Sessions Judge, East Godavari District, Rajahmundry (hereinafter will be referred to as “Special Judge”), the unsuccessful accused therein, filed the present Criminal Appeal. The learned Special Judge found the accused guilty of the charge under Section 8(c) r/w Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (“NDPS Act” for short), convicted him under Section 235(2) of the Code of Criminal Procedure Code (“Cr.P.C.” for short) and after questioning him about the quantum of sentence, sentenced him to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.25,000/-, in default to suffer simple imprisonment for six months.

2. The parties to this Criminal Appeal will hereinafter be referred to as described before the trial Court for the sake of convenience.

3. The State, represented by the Inspector of Police, Rampachodavaram, filed a charge sheet in Crime No.180 of 2007 of Rampachodavaram Police Station, alleging in substance as follows:

(i) The accused is resident of Tirumalayapalem Village of Gokavaram Mandal. He has no respect towards Law and Order and used to indulge in antisocial activities.

(ii) L.W.1-V. Srinivasa Rao and L.W.2-M. Murali Krishna are the Tahsildar of Rampachodavaram and Village Revenue Officer of Peda Geddada Village respectively.

(iii) On 27.11.2007 on receipt of credible information, L.W.8-M. Veera Reddy, Inspector of Police, Rampachodavaram Police Station, collected his staff and L.W.1 and L.W.2 and proceeded to the outskirts of Peda Geddada Village of Rampachodavaram Mandal. At about 11-30 a.m., they found the accused, who tried to escape from the scene by leaving the gunny bag on noticing the arrival of the police. Then, the Inspector of Police along with the staff surrounded him, caught hold of him and interrogated him, who revealed that he is in possession of 10 Kgs. of Ganja in gunny bag having purchased it from one person at Orissa State and he was transporting the same to Tirumalayapalem village of Gokavaram Mandal. The Inspector of Police intimated to the accused about the presence of L.W.1, who is the Gazetted Officer, and searched the gunny bag. Accordingly, evidencing the seizure, a mahazarnama was drafted. Contraband was seized after following the prescribed procedure. L.W.7-Sub Inspector of Police registered the mahazarnama as a case in Crime No.180 of 2007 under Section 20(b)(i) of NDPS Act at 1-00 p.m., on 27.11.2007. The Inspector of Police during investigation, examined L.W.3-N. Venkata Rao, Head Constable, L.W.4-A.V.V. Satanarayana, Police Constable, L.W.5-S. Appa Rao, Police Constable and L.W.6-Andaluri Venkateswara Rao, who participated in the raid. The seized sample i.e., Ganja packet was forwarded to the Chemical Examiner of Prohibition & Excise, Regional Prohibition and Excise Laboratory, Kakinada, for examination. The accused also involved in another case of Rampachodavaram Police Station and involved in Gokavaram and Korukonda Police Stations. The Chemical Examiner examined the sample and found that the sample is of Ganja. Hence, the charge sheet.

4. The learned Special Judge took cognizance of the case under the above provisions of law and after appearance of the accused complied Section 207 of Cr.P.C. The learned Special Judge by following the procedure under Section 228 of Cr.P.C., framed charge under Section 8(c) r/w 20(b(ii)(B) of N.D.P.S Act against the accused, explained to him in Telugu, for which he pleaded not guilty and claimed to be tried.

5. To bring home the guilt against the accused, the prosecution, during the course of trial, examined P.W.1 to P.W.4 and marked Ex.P.1 to Ex.P.6 and M.O.1. After closure of the evidence of prosecution, accused was examined under Section 313 of Cr.P.C. with ref