Challenge
1. These appeals take exception to the final impugned judgment dated 10th November, 2022 passed by the High Court for the State of Telangana at Hyderabad rejecting the Criminal Appeal No. 594 of 2011 preferred by the appellants assailing the judgment dated 30th May, 2011 passed by the Metropolitan Sessions Judge, Hyderabad(hereinafter being referred to as ‘trial Court’) in Sessions Case No. 563 of 2010.
Conviction under NDPS Act
2. By the aforesaid judgment, the learned trial Court, convicted the appellants for the offence punishable under Section 8(c) read with Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985(hereinafter being referred to as the ‘NDPS Act’) and sentenced each of them to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- each, in default, to suffer simple imprisonment for a period of six months.
Brief Facts
5. Mr. M. Srinivasa Rao, Inspector of Police(PW-1), West Zone Task Force (hereinafter being referred to as ‘Inspector PW-1’) claims to have received credible information on 8th May, 2009 regarding transportation of ganja by two persons from Sangareddy to Hyderabad in a ‘Toyota Qualis’ vehicle. PW-1 apprised his superior officers about such source information and after obtaining permission, secured the presence of two panchas, namely, Shareef Shah and Mithun Jana, to associate as panchas and proceeded to the spot along with his team. The Inspector PW1 and the team members intercepted a Toyota Qualis vehicle bearing registration no. AP 09 AL 6323 near Galaxy Theatre at 15:00 hours. A-1 and A-2 were allegedly found present in the vehicle. The Inspector PW-1 served them a notice under Section 50 of the NDPS Act. On the request of the accused, a Gazetted Officer i.e., Inspector PW-4(V. Shambabu) was called to the spot to associate in the proceedings. The accused were again given a notice under Section 50 of the NDPS Act by PW-4(V. Shyambabu) who also participated in the search proceedings and it is alleged that three bundles of ganja weighing around 80 kgs found lying in the vehicle were seized in presence of Inspector PW-1 and the panchas.
Arrest and interrogation on the spot
6. A-1 and A-2 were arrested and interrogated at the spot. Three samples weighing about 50 grams were drawn from each bundle contraband and remaining muddamal ganja was seized vide confession-cum-seizure panchnama (Exhibit P-3). One part of the sample was handed over to A-1 and A-2.
Recovered contraband is Ganja
8. One part of sample collected from the recovered contraband was forwarded to the Forensic Science Laboratory (FSL) from where a report (Exhibit P-11) was received concluding that the sample was of ganja as defined under Section 2(b) of the NDPS Act. Acting on the confession/interrogation of the two occupants of the car, i.e. A-1 and A-2, the Investigating Officer (PW-5 K. Chandrasekhar Reddy)(hereinafter being referred to as ‘Investigating Officer PW-5’) apprehended the accused A-3 and A4. After concluding the investigation, a charge-sheet was filed against the four accused in the trial Court.
Trial court convicted
10. The accused, upon being questioned under Section 313 of Code of Criminal Procedure, 1973(hereinafter being referred to as ‘CrPC’) denied the prosecution allegations but chose not to lead any evidence in defence. The trial Court proceeded to convict and sentence the accused in the above terms by the judgment dated 30th May, 2011.
High court upheld the conviction
11. Being aggrieved by their conviction and the sentence awarded by the trial Court, the accused preferred an appeal under Section 374(2) CrPC in the High Court for the State of Telangana at Hyderabad which stood rejected vide the judgment dated 10th November, 2022.
Analysis
Recovery of narcotics from vehicle stopped during transit
17. Before discussing the prosecution evidence, we would like to note that the case as set up by the prosecution is regarding recovery of narcotics from a vehicle which was stopped during transit. Thus, the procedure of search and seizure would be governed by Section 43 read with Section 49 of the NDPS Act which are reproduced below:-
“section 43 and section 49 NDPS Act”
19. A perusal of the evidence of the Seizure Officer (Inspector PW1) and the confession-cum-seizure panchnama (Exhibit P-3) would reveal that the prosecution claims to have recovered the contraband from three bags wherein the ganja as well as green chillies were present. Seizure Officer(Inspector PW-1) made no effort whatsoever to conduct a separate weighment of the contraband by segregating the chillies. Rather, the panchnama is totally silent about presence of chillies with the bundles of ganja. Thus, it cannot be said with any degree of certainty that the recovered ganja actually weighed 80 kgs. Seizure Officer(Inspector PW-1) also stated that he collected three samples of ganja at the spot and handed over one sample to accused. If this was true, apparently only two sample packets remained for being sent to the FSL. Contrary to the evidence of PW-1, PW-5 stated that three samples of ganja were taken by LW-10 who handed the same over to him. Thereafter, these samples were forwarded to the FSL through the ACP and a FSL report (Exhibit P-11) was received. When PW-5 appeared for deposition, he produced the muddamal ganja in the Court and it was seen that the same was packed in seven new bags as against the three bags referred to in the seizure memo (Exhibit P-3). Neither any proceedings were conducted nor any memo was prepared by the police officers for repacking the seized ganja bundles in new packaging.
Independent panch witnesses not examined
20. The two independent panch witnesses i.e. Shareef Shah and Mithun Jana who were associated in the recovery proceedings, were not examined in evidence and no explanation was given by the prosecution as to why they were not being examined.
No witnesses or documents to prove the safe keeping of samples
21. Sub-Inspector LW-10, who prepared three samples of ganja, as per the testimony of PW-5, was not examined in evidence. In addition thereto, the prosecution neither examined any witness nor produced any document to satisfy the Court regarding safe keeping of the samples right from the time of the seizure till the same reached the FSL. The official who collected the samples from the police station and carried the same to the FSL was not examined at the trial. From the quoted portion of the evidence of Seizure Officer(Inspector PW-1), it is clear as day light that he handed over one of the three samples to the accused. The witness also admitted that he did not mention about sealing of the samples in the panchnama. Contrary to the evidence of PW-1, PW-5 stated that three samples of ganja were taken out by Sub-Inspector LW10 and were handed over to the witness who forwarded the same to the ACP for sending it to FSL. In cross-examination, the witness admitted that he did not file any document to show that the property was kept in malkhana. The malkhana register was not produced in the Court. The FSL report (Exhibit P-11) does not disclose about the panch chits and seals and signature of the accused on samples. The property deposited in the Court(muddamal) was not having any official seals. The witness also admitted that he did not take any permission from the Court for changing the original three packets of muddamal ganja to seven new bags for safe keeping. These glaring loopholes in the prosecution case give rise to an inescapable inference that the prosecution has miserably failed to prove the required link evidence to satisfy the Court regarding the safe custody of the sample packets from the time of the seizure till the same reached the FSL. Rather, the very possibility of three samples being sent to FSL is negated by the fact that the Seizure Officer handed over one of the three collected samples to the accused. Thus, their remained only two samples whereas three samples reached the FSL. This discrepancy completely shatters the prosecution case.
Inventory proceedings were not prepared in the presence of the Jurisdictional Magistrate as per section 52A NDPS Act
22. Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer PW-5 for preparing an inventory and obtaining samples in presence of the jurisdictional Magistrate. In this view of the matter, the FSL report (Exhibit P-11) is nothing but a waste paper and cannot be read in evidence. The accused A-3 and A-4 were not arrested at the spot. The offence under Section 20(b)(ii)(c) deals with production, manufacture, possession, sale, purchase, transport, import or export of cannabis. It is not the case of the prosecution that the accused A-3 and A-4 were found in possession of ganja. The highest case of the prosecution which too is not substantiated by any admissible or tangible evidence is that these two accused had conspired sale/purchase of ganja with A-1 and A-2. The entire case of the prosecution as against these two accused is based on the interrogation notes of A-1 and A-2.
Confession to the police officer is not admissible and hit under section 25 Evidence Act
23. It is trite that confession of an accused recorded by a Police Officer is not admissible in evidence as the same is hit by Section 25 of the Evidence Act. Neither the trial Court nor the High Court adverted to this fatal flaw in the prosecution case and proceeded to convict A-3 and A-4 in a sheerly mechanical manner without there being on iota of evidence on record of the case so as to hold them guilty.
Prosecution failed to prove the charges
24. As a consequence of the above discussion, we are of the firm opinion that the prosecution has miserably failed to prove the charges against the accused. The evidence of the police witnesses is full of contradictions and is thoroughly unconvincing. The conviction of the accused appellants as recorded by the trial Court and affirmed by the High Court is illegal on the face of record and suffers from highest degree of perversity.
Party
MOHAMMED KHALID AND ANOTHER ….APPELLANT(S) VERSUS THE STATE OF TELANGANA ….RESPONDENT(S) – CRIMINAL APPEAL NO(S). 1610 OF 2023 – 2024 INSC 158 – MARCH 01, 2024
https://main.sci.gov.in/supremecourt/2022/38029/38029_2022_3_1501_51001_Judgement_01-Mar-2024.pdf
Mohammed Khalid vs. The State of Telangana 38029_2022_3_1501_51001_Judgement_01-Mar-2024
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