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TMI Blog2024 (3) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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. 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. 7. Inspector PW-1 thereafter proceeded to hand over the accused along with the seized articles to LW-10(G. Naresh Kumar, Sub-Inspector of Police, Golkonda Police Station)(hereinafter being referred to as Sub-Inspector LW-10 ) for further action. Based on these proceedings, a complaint came to be lodged at the Golkonda Police Station and Criminal Case No. 181 of 2009 was registered and investigation was commenced. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the accused:- (i) That the independent panch witnesses associated with the search and seizure were not examined in evidence and hence the entire search and seizure proceedings become doubtful and are vitiated; (ii) That it is admitted that the contraband ganja was seized from three bags which were also having green chillies therein. However, the Seizure Officer made no effort whatsoever to segregate the chillies and the alleged contraband and hence it cannot be held with any degree of certainty that the recovered contraband ganja fell within the category of commercial quantity; (iii) That the prosecution failed to ensure compliance of the requirements of Section 52A of the NDPS Act inasmuch as, no sampling procedure was undertaken before the Magistrate; (iv) That the Seizure Officer (Inspector PW-1) claims to have collected a total of three samples (one from each bundle of ganja) and handed over one part of the sample to the accused. However, when the articles were received at the FSL, three distinct sample packages were found which upon testing gave the presence of cannabis sativa . It was thus submitted that only two samples remained with the Investigation Officer and hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cord. Arguments on behalf of State : 15. Per contra, learned counsel representing the State, vehemently and fervently opposed the submissions advanced by learned counsel for the appellants. He urged that two Courts, i.e., the trial Court as well as the High Court, have recorded concurrent findings of facts for convicting the appellants and for affirming their conviction and hence, this Court in exercise of the jurisdiction under Article 136 of the Constitution of India should be slow to interfere in such concurrent findings of facts. He thus implored the Court to dismiss the appeals. Discussion and Conclusion : 16. We have given our thoughtful consideration to the submissions advanced at the Bar and have gone through the impugned judgment and the evidence available on record. 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:- 43. Power of seizure and arrest in public place. Any officer of any of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and marked as S- 1 and S-3 each sample packet containing 50 grams of Ganja and affixed panch chits. Also seized Maroon, colour Qualis vehicle bearing No. AP 09AL 6323 Engine No. 2L9722612, Chassis No. LF50-104863512/01 from the possession of the accused persons. Out of the seized Ganja drawn three samples containing 50 grams marked S-1 to S-3, each packed in polythene covers and attached panch chits to them. The sample is supplied to the accused Mohd Ishaq Ansari and S.A. Ashafiullah. (b) Exhibit P-11(FSL Report) Received one sealed cloth parcel sealed with six seals, which are intact and tallying with the sample seal labelled as Cr. No. 181/2009 containing a cardboard box containing three closed polythene packets each labelled as S-1, S-2 S-3 respectively described below through Sri K. Narsimulu, PC 7770 on 14/07/2009. (C )PW-1 I collected three samples weighing about 50 gms each and given one sample to the accused under proper acknowledgement. M.O.I is the ganja packed in seven bags. There are no panch chits right now on M.O.I bags. It is true that the bags, deposited before the court are not having, seals. I, have weighed the Ganja only and it is weighing 80 Kgs, but I have not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. 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 suffer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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