The Accused cannot be held guilty under the NDPS Act if the evidence collected by the Police Officers is full of contradictions: Supreme Court
Case Title – Mohammed Khalid and Another vs The State of Telangana
Case No. – Criminal Appeal No(s). 1610 of 2023 with Criminal Appeal no(s). 1611 of 2023
Decided On – March 01, 2024
Quoram – Justice B.R. Gavai and Justice Sandeep Mehta
The issue in this case was regarding the conviction of appellants under Section 8(c) read with Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing each of them to a rigorous imprisonment for a period of ten years with a fine of Rs.1,00,000/-
In the case of Mohammed Khalid and Another vs The State of Telangana, the appellants challenged the decision of The High Court of Telangana on various grounds. They further, contested that the Learned Trial court had committed an error in wrongly prosecuting them under the Narcotic Drugs and Psychotropic Substances Act, 1985
Facts of the Case
The Inspector of Police, Mr. M. Srinivasa Rao upon receiving intercepted the vehicle and found A1 (Mohd. Ishaq Ansari) and A-2 (S.A. Shafiullah) in the vehicle. The inspectors are alleged to have seized three bundles of ganja weighing around 80 kgs in the vehicle. Further, three samples weighing about 50 grams were drawn from each bundle of contraband and remaining muddamal ganja was seized. Notably, one part of this sample was handed over to A-1 and A-2. Based on these proceedings, a complaint came to be lodged and a Criminal case was registered and investigation on the same was commenced.
Out of the three samples that were collected, one part of sample was forwarded to the Forensic Science Laboratory to determine the type of narcotic substance. The reports from FSL confirmed that the collected sample was of ‘Ganja’ as defined under Section 2(b) of the NDPS Act.
The Investigating Officer, upon the interrogation of A1 and A2, apprehended the accused A-3 (Mohd. Khalid) and A-4 (Md. Afsar). Subsequently, a charge-sheet was filed against the four accused in the trial Court.
The trial Court upon examination of witness and documents on record proceeded to convict and sentence the accused under Section 8 read with Section 20(b)(ii)(c) of the NDPS Act
Being aggrieved by their conviction, the accused preferred an appeal before the High Court of Telangana. The HC upheld the judgment of trial court and rejected their appeal. The A-1 (Mohd. Ishaq Ansari) expired during the pendency of appeal before the High Court and hence the charges against him were abated.
The other three accused challenged this decision of High Court. The A-3 and A-4 have preferred Criminal Appeal No. 1610 of 2023 and A-2 has preferred Criminal appeal No. 1611 of 2023 before the Supreme Court.
Legal provisions
Section 2(b) of the NDPS Act – Defines ‘Cannabis Ganja’
Section 8(c) of NDPS Act – Prohibition of certain operations
Section 20(b)(ii)(c) of NDPS Act – Person found in possession of cannabis in a commercial quantity
Section 43 of the NDPS Act – Power of seizure and arrest in public place
Section 49 of the NDPS Act – Power to stop and search conveyance
Section 52A of the NDPS Act – Disposal of seized narcotic drugs and psychotropic substances.
Section 313 of Code of Criminal Procedure, 1973 – Power to examine the accused
Section 374(2) CrPC, 1973 – Appeal from convictions.
Section 25 of the Evidence Act – Confession to police officer not to be proved.
Submissions on behalf of the accused appellants
Learned counsel representing A-2(S.A. Shafiullah) submitted that the two independent panch witnesses i.e. Shareef Shah and Mithun Jana who were associated in the recovery proceedings, were not examined in the evidence. The Seizure Officer made no effort to segregate the chillies from the alleged contraband and contended that the recovered contraband ganja did not fall within the category of commercial quantity.
The facts reveal that the Seizure Officer who collected a total of three samples, handed over one part of the sample to the accused. But, three distinct sample packages were found at the FSL for testing. The counsel hence raised doubt regarding the sanctity of the samples collected by the Seizure Officer.
The Counsel also highlighted the loopholes in the investigation and unveiled the misappropriation of evidence by the Police Inspectors in the course of trial.
The Learned counsel representing A-3 (Mohd Khalid) and A-4 (Md. Afsar) urged that these accused were not found present at the spot at the time of seizure. They were arrested merely on the basis of the confessional statements of A-1 and A-2. Thus, he submitted that their conviction is illegal and unsustainable on the face of the record.
Submissions on behalf of State
The Learned counsel representing the State 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 were right in convicting the appellants. He thus implored the Court to dismiss the appeals.
Courts Observation and Analysis
The court considering the submissions advanced and analyzing the evidence on record made the following observations. The court pointed out that the contraband recovered from three bags collected as evidence contained the ganja as well as green chillies. Thus, the court concluded that there is no certainty in adducing that the recovered ganja weighed 80 kgs in actuality.
The bench observed that the two independent panch witnesses, were not examined in evidence and also no explanation was given by the prosecution for the same. The prosecution failed to satisfy the court regarding the safe custody of the sample packets from the time of the seizure till the same reached the FSL.
The court also pointed out that 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. This discrepancy completely shatters the prosecution case. The court further noted that the mandate under Section 52A of the NDPS Act was not satisfied.
The court with regard to the case against the accused A-3 and A-4 observed that the entire case of prosecution against them was merely based on the interrogation notes of A-1 and A-2, which is hit by Section 25 of the Evidence Act.
Judgement
The Court opined that the prosecution has miserably failed to prove the charges against the accused. The evidence of the police witnesses was full of contradictions and 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. Therefore, the court acquitted the appellants of all the charges.
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Judgement Reviewed by – Keerthi K