2024 (3) TMI 120 - SC - Indian Laws

Recovery of narcotics from a vehicle which was stopped during transit - Ganja - contraband item - procedure of search and seizure governed by Section 43 read with Section 49 of the NDPS Act - HELD THAT - 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. 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. 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. The judgment dated 10th November, 2022 passed by the High Court affirming the judgment of the trial Court convicting and sentencing the accused appellants for the charge under Section 8(c) read with 20(b)(ii)(c) of the NDPS Act is hereby quashed and set aside. The appellants are acquitted of all the charges - Appeal allowed.

Summary

Issues Involved:
1. Legitimacy of search and seizure procedures.
2. Compliance with Section 52A of the NDPS Act.
3. Admissibility and integrity of the evidence.
4. Conviction based on confessions and interrogation notes.

Issue-wise Summary:

1. Legitimacy of Search and Seizure Procedures:
The appellants challenged the search and seizure procedures, arguing that the independent panch witnesses were not examined, making the proceedings doubtful and vitiated. The prosecution claimed the contraband was seized from three bags containing both ganja and green chillies, but no effort was made to segregate them, raising doubts about the actual weight of the ganja. Additionally, discrepancies were noted in the number of samples collected and the condition of the seized items, which were repacked without proper documentation or seals.

2. Compliance with Section 52A of the NDPS Act:
The appellants argued that the prosecution failed to comply with Section 52A of the NDPS Act, as no sampling procedure was undertaken before the Magistrate. The court noted that no proceedings under Section 52A were conducted, rendering the FSL report inadmissible as evidence.

3. Admissibility and Integrity of the Evidence:
The evidence presented by the prosecution was found to be full of contradictions. The Seizure Officer claimed to have handed one of the three samples to the accused, leaving only two samples, yet three samples were received by the FSL. The prosecution failed to produce any document or witness to verify the safe custody of the samples from seizure to FSL. The FSL report lacked details about panch chits, seals, and signatures, further questioning its integrity.

4. Conviction Based on Confessions and Interrogation Notes:
The appellants A-3 and A-4 were not present at the seizure spot and were arrested based on the interrogation notes of A-1 and A-2. The court highlighted that confessions recorded by a police officer are inadmissible under Section 25 of the Evidence Act. The trial and High Court's conviction of A-3 and A-4 was found to be mechanical and unsupported by tangible evidence.

Conclusion:
The Supreme Court concluded that the prosecution failed to prove the charges against the accused due to contradictory and unconvincing evidence. The conviction and sentence by the trial and High Court were deemed illegal and perverse. The judgment dated 10th November 2022, affirming the trial court's decision, was quashed, and the appellants were acquitted of all charges. The appeals were allowed, and the appellants were ordered to be released forthwith if not wanted in any other case.