Telangana High Court
Bal Dev, Madhya Pradesh State vs P.P., Hyd on 26 September, 2022
Author: N. Tukaramji
Bench: N. Tukaramji
1 NTR,J
CRLA_868_2016
THE HONOURABLE SRI JUSTICE N. TUKARAMJI
CRIMINAL APPEAL No.868 OF 2016
JUDGMENT:
Heard Sri P.Indra Prakash the learned counsel for the appellant and the learned Assistant Public Prosecutor for the respondent.
2. Assailing the Judgment of conviction and sentence dated 07.04.2016 in Sessions Case No.33 of 2014 on the file of Special Judge for Trial of Cases under NDPS Act-cum-Additional Sessions Judge, Khammam, the convict/1st accused (hereinafter 'the 1st accused') preferred this appeal.
3. In the impugned judgment, the 2nd accused was acquitted and the 1st accused was found guilty for the offence under Section 20(b)(ii) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act') and sentenced to undergo Rigorous Imprisonment for eight years and to pay a fine of Rs.200/-, in default to undergo Rigorous Imprisonment for one month. The 1st accused was also found guilty for the offence under Section 229-A of Indian Penal Code (for short 'IPC') and sentenced to undergo Rigorous Imprisonment for six months. The sentences were ordered to run consecutively.
4. The prosecution case in brief is that in the intervening night of 07/08- 06-2014 on credible information, P.W.2/the then Sub Inspector of Reserve Police Force, Khammam along with his staff reached the 2nd platform of 2 NTR,J CRLA_868_2016 Khammam Railway Station and on arrival of the link express at about 11.40 pm., they entered the general compartment which is 3rd from the engine and found the 1st accused and 2nd accused in possession of a bag containing ganja.
5. There upon the accused were detrained and on information, the Head Constable/P.W.1 and woman constable reached the platform and a written requisition/Ex.C1 was forwarded to the Tahsildar, Khammam. Further, they secured the presence of mediators/P.W.3 and another. In their presence, on interrogation, the 1st accused made a statement admitting guilt and a maroon colour bag which was in their possession was searched and found 8 kgs., of ganja in it. From the contraband, three samples of 50 grams each were taken and mediators report/Ex.P1 was prepared.
6. Thereafter, on receipt of the report, accused, seized contraband and samples, the Sub Inspector/P.W.6 registered a case in Crime No.69 of 2014 and presented the accused before the Judicial Magistrate of First Class, Railways, Khazipet. Further, the investigating officer forwarded the samples to Forensic Science Laboratory and received a report/Ex.P6 opining that the sample is found to be ganja.
7. Further, the investigating officer filed an application before the trial Court for destruction of the contraband, which was allowed on 11.09.2014. Accordingly, on 26.09.2014 destruction proceedings were taken up in the presence of P.W.4 and mediators, wherein three samples/M.Os.1 to 3 were 3 NTR,J CRLA_868_2016 collected and the contraband was destroyed between platform No.1 of Khammam railway station. The destruction proceedings were recorded in panchanama/Ex.P4 and photographed as in Ex.P5 and preserved in compact disc/Ex.P7 and on completion of investigation, laid charge sheet.
8. The trial Court had taken cognizance of the offence and framed charges under Section 20(b)(ii) of NDPS Act, and Section 229-A of IPC., and on denial by the accused, the trial was taken up.
9. During trial, to prove the charges against the accused, the prosecution examined P.Ws.1 to 6 and got marked Exs.P1 to P7 and Ex.C1 and also marked M.Os.1 to 3.
10. After closure of the prosecution evidence, incriminating material was put to the accused under Section 313 Cr.P.C., which was denied and explained that on that day, while they (1st and 2nd accused) were in the train, the police came in mufti and showed one bag and questioned as to whom the bag belongs, though they replied in negative, by attributing that it is their bag, detained them and foisted the false case.
11. The trial Court after considering the evidence, concluded that the prosecution was able to prove the guilt of the 1st accused under Section 20(b)(ii) of NDPS Act and Section 229-A of IPC., and sentenced him to the imprisonment as mentioned supra, however acquitted the 2nd accused. Aggrieved thereby, the 1st accused filed this appeal.
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12. The learned counsel for the 1st accused contended that the version of the prosecution and the evidence of witnesses are in contradiction and falling short to constitute the ingredients of the charged offences. The trial Court should have considered the plea of the 1st accused that the bag does not belong to him and he was falsely implicated. The trial Court has relied only on the evidence of the official witnesses and in the absence of corroboration, their evidence ought not to have been counted to record conviction against the accused. Further, the trial Court should have observed that the prosecution had failed to establish the possession of contraband with the accused and the proceedings narrated by the mediators and other witnesses is undeniably at variance. In addition, the contraband, samples collected i.e., the seized material were not placed and proved. Further, on the same set of facts and evidence, the 2nd accused was acquitted. Thus, the 1st accused is entitled for the equal footing even otherwise benefit of doubt and acquittal.
13. The learned public prosecutor pleaded that the prosecution evidence is consistent as to finding the accused in possession of the contraband. The forensic laboratory report/Ex.P6 had confirmed the material found in the bag is ganja. Thus, the prosecution had established the possession and the presumption under Section 54 of the NDPS Act, strengthens the evidence. In the absence of any rebuttal, except denial, the trial Court had rightly 5 NTR,J CRLA_868_2016 recorded the finding of conviction and sentenced the 1st accused, hence, there is no tenable reason for interference in the appeal.
14. In this position, the point arises for determination is:
"Whether the prosecution had proved the guilt of the 1st accused for the offence under Section 29(b)(ii) of NDPS Act and Section 229-A of IPC., beyond reasonable doubt?"
15. The prosecution case is explicating that the accused were found with contraband in the public transport/train. Thus, the foundational fact to be established is the possession of contraband by the 1st accused.
16. Among the prosecution witnesses, for the team which conducted search in general compartment, the then Sub Inspector/P.W.2 was examined. The other witnesses P.Ws.1, 3 to 5 were called to the spot after the accused were detrained by the P.W.2. Thus, the version of P.W.2 on this aspect assumes importance. The P.W.2 categorically deposed that in the general coach, they noticed one unclaimed maroon colour bag near the bath rooms. He also stated that by then in the coach, there were several other people. However, on his enquiry, the 1st accused and 2nd accused claimed that the bag belong to them and on further enquiry, the 1st accused disclosed that the bag contains ganja and they are transporting it from Visakhapatnam to Nagpur. Then, he detrained both the accused along with maroon colour bag on to the platform No.2. By this statement, it is explicit that in the first instance, they 6 NTR,J CRLA_868_2016 found unclaimed maroon colour bag in the compartment. Meaning thereby, the accused were not found in possession of that bag. Further, the statement of P.W.2 is disclosing that though there are several others, he straight away enquired both the accused and they claimed that the bag and the 1st accused informed them that the bag contains ganja. It is pertinent to mention here that on record, except the alleged statement of the 1st accused, there is no material to connect him with the bag. To establish the fact that the bag belongs to the 1st accused, the investigating officer should have enquired the other passengers and collected material to prove that the bag was brought by the accused or in the said bag certain belongings of the 1st accused are found. For the reasons best known to the investigating agency, no such effort or reference is found. However, in ordinary prudence, if the sequence of events stated by the P.W.2 is considered, on straight questioning, the accused voluntarily claiming the bag and disclosing the contents of ganja is found unnatural and artificial. In this position, the evidence adduced to establish the foundational fact is not inspiring confidence, so as to conclude that the disputed bag belong to the accused.
17. The search and seizure proceedings were recorded in panchanama/Ex.P.1, wherein it is recorded that in the presence of Tahsildar, bag was opened and found ganja in it, and the Tahsildar/P.W.5 had collected 3 samples of 50 grams each in a polythene cover and sealed them with the 7 NTR,J CRLA_868_2016 identity slips signed by the mediators. However, in the evidence, the Head Constable/P.W.1 who reached the platform on information from P.W.2 about the offence, deposed that he found 'brown' colour collage bag in the possession of the 1st accused. The bag was got opened by the 1st accused and they saw 7 to 8 kgs., of ganja and 'he' picked 3 samples of 50 grams each and forwarded the same for chemical examination. The Sub Inspector/P.W.2 deposed that it was maroon colour bag containing ganja and the Tahsildar picked up 3 samples, whereas the mediator/P.W.3 has not referred the colour of bag. However, he stated that the accused opened the bag at the instance of Tahsildar and he saw 3 polythene packets containing ganja and the Tahsildar has collected 3 samples. The Tahsildar/P.W.5 deposed that she saw maroon colour bag and on her instructions, the mediators opened the bag and she saw one polythene bag containing small packets weighing 50 grams each and they picked one such small packet, opened it and she smelt and found it to be ganja. Interestingly, the Tahsildar did not refer collection of any sample.
18. The investigating officer/P.W.6 who received the accused and contraband immediately after the search and seizure, deposed that he received one maroon colour bag and found it to be fully tied and sealed, containing slips signed by mediators. However, one zip of the bag was not sealed, then he opened and saw one bag wrapped in yellow colour polythene 8 NTR,J CRLA_868_2016 paper and that bag was not sealed, but the identity slips signed by mediators were found.
19. It is also pertinent to note that a mediator for destruction/P.W.4, in his evidence stated that during the destruction proceedings, he saw one white bag containing ganja and 3 samples were picked up and identity slips contains his signatures.
20. When the material is carefully considered, the version of P.W.1 is differing with P.W.4 as to the colour of bag. Further, P.Ws.1 and 2 stated that on opening the bag, it contained ganja. The mediator for search and seizure/P.W.3 deposed that he saw 3 polythene bags containing ganja, whereas, the version of Tahsildar is that the bag was containing a polythene cover containing small packets of ganja. Further, the version of investigating officer/P.W.6 is that he saw one bag wrapped in yellow colour polythene paper without seal and without identity slips. The mediator for destruction proceedings/P.W.4 states that in the white colour bag he found ganja and there is no reference as to polythene paper, small packets and identity slips. Thus, the version of prosecution witnesses regarding the bag and how they saw the contraband is clearly at variance and these aspects are shaking the credibility of prosecution case.
21. Regarding collection of samples, P.W.1 claimed that he collected 3 samples. As per the P.Ws.2 and 3, three samples were collected by the 9 NTR,J CRLA_868_2016 Tahsildar. However, the Tahsildar, as noted above did not speak about collection of samples. The investigating officer stated that the samples collected in the proceedings of Ex.P.1, one such sample was sent to the APFSL., and received the report/Ex.P6. It is also the statement of investigating officer that the seized contraband in maroon colour bag containing ganja was never forwarded to the Court. In addition, the samples which are said to have been collected were also not found in the record. A close reading of forensic report/Ex.P6 is disclosing that the sample was forwarded to APFSL., vide letter dated 13.06.2014 through one Ch.Narasimha Rao, RPC 149 and the same was received by the APFSL on 18.06.2014. Though, the entries in the report show that polythene cover was received with green coloured dried leaves as sample, there is nothing to show that the sample collected in Ex.P1 proceedings was sent for examination. That apart, there is no explanation for the delay and the chain of custody during the intermittent period. Further, neither in the forensic report/Ex.P6 nor the investigating officer mentioned about the remnant sample that would be received from the forensic laboratory. These lapses are giving rise to doubt the collection of samples during Ex.P1 proceedings and sending them for chemical examination. As noted above, neither the contraband, nor the samples collected during Ex.P1 proceedings were placed before the Court for inspection.
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22. The investigating officer/P.w.6 deposed that the contraband was destroyed as per the orders of the trial Court. To prove the same, the mediator to the destruction proceedings was examined as P.W.4. As noted above, he categorically stated that a white bag containing ganja was destroyed, which is not meeting the prosecution case detail. Howsoever, the trial Court had grossly erred in permitting the destruction of contraband by the investigating officer in deviation of the procedure contemplated under Section 52-A of NDPS Act whereby the destruction of contraband shall be undertaken only after due verification of the seized contraband by the Court and by the committee formed to supervise the destruction. Therefore, it is clear that the procedure contemplated under the NDPS Act has not been adhered to even otherwise by the evidence of the P.W.4, the particulars of destructed contraband is neither matching with the colour of the bag nor its condition stated by the other witnesses. These aspects are further strengthening the doubts on prosecution case.
23. That apart, from the inception of the case, the 2nd accused was shown as the person who was along with the 1st accused and committed the offence. In spite of the prosecution version about the involvement of 2nd accused, it appears, only on the version that the 1st accused had opened the bag and as it is recorded that the bag was recovered from the possession of 1st accused, the 2nd accused was acquitted and this view has no basis. Thus, for the aforesaid, 11 NTR,J CRLA_868_2016 especially in the absence of evidence to conclusively prove that the bag with contraband was discovered from the possession of the 1st accused and for the discrepancies found in the evidence of the witnesses regarding the contraband, collection of samples and destruction, it shall be held that the prosecution had failed to prove the charges beyond reasonable doubt.
24. Resultantly, the appeal is allowed. The judgment of conviction and sentence dated 07.04.2016 in Sessions Case No.33 of 2014 passed by the Special Judge for Trial of Cases under NDPS Act-cum-Additional Sessions Judge, Khammam against the 1st accused are set aside. The paid fine amount shall be refunded. The bail bonds shall stand cancelled.
Consequently, miscellaneous petitions, if any, pending in this appeal shall stand closed.
_______________________ JUSTICE N.TUKARAMJI Date: 26.09.2022 Shr