Telangana High Court
Gaddameedi Anja Goud vs The State Of Ap., on 23 September, 2024
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1183 OF 2012
JUDGMENT:
This appeal is directed against the Judgment of conviction and sentence dated 22.11.2012 in NDPS.S.C.No.11 of 2010 on the file of the I Additional Sessions Judge, Medak at Sangareddy, whereby, appellant/accused No.1 was sentenced to undergo ten years rigorous imprisonment and to pay fine of Rs.1,00,000/-, in default simple imprisonment for six months for the offence under Section 8(c) r/w Section 22 of NDPS Act, 1985.
2. The prosecution case is that PW.3, who was working as Prohibition and Excise Sub-Inspector along with PW.4, who was the Prohibition and Excise Inspector and others including PWs.1 and 2 went to Platform No.1 of APSTRC Bus Stand, Gajwel. There they found accused No.1 under suspicious circumstances and was holding heavy plastic bag in 2 his right hand. On enquiry, it was revealed by accused that bag was containing diazepam. Memo was served on accused No.1 before opening the bag. In the said bag PW.3 found 5 packets of 1kg each. When PW.3 tested the sample, it confirmed diazepam. According to PW.4, he has drawn two samples of 50gms each. The contraband was seized and panch slips were pasted over it. The panchas were PWs.1 and 2, who turned hostile to prosecution case during trial.
3. Having seized the said quantity of 4.900 kgs of diazepam which is MO.1, the remaining quantity was taken as two samples of 50 grams.
4. The said samples when sent for examination, PW.5, who is the chemical examiner stated that the samples contained Alprazolam.
5. On the basis of the test analysis report and other investigation done, charge sheet was filed for the 3 offence under Section 8(C) r/w Section 22 of NDPS Act.
6. Learned Sessions Judge having considered the evidence of PWs.1 to 5 of whom PWs.3 and 4 are the official witnesses who conducted seizure and PW.5, the chemical examiner found that the prosecution was able to prove possession of Alprazolam with accused No.1. Accused No.2 was also tried along with accused No.1, on the basis of confession of accused No.1, however, learned trial Court found that accused No.2 was not complicit of any offence and accordingly acquitted him.
7. Learned counsel appearing on behalf of the appellant would submit that firstly, there is a violation of Section 42(1) of NDPS act, since information was not given in writing to the concerned Superior Officer. secondly, it was revealed that diazepam which was found by PWs.3 and 4, was incorrect. During the 4 course of analysis by the chemical examiner it was found that it was Alprazolam and not diazepam. The said discrepancy was not explained by the prosecution. Since there is violation of procedure prescribed under Section 42 of NDPS Act and also the very basis of the prosecution case that the material seized from accused No.1 was diazepam and found to be incorrect by the chemical examiner, the conviction has to be set aside.
8. Learned Additional Public Prosecutor for the respondent would submit that PW.5 had explained under what circumstances, the error crept in. The Magistrate Court had sent the sample for the purpose of examination. The initial finding of PW.4 that contraband was diazepam has no bearing, since the expert who was the chemical examiner had examined seized material and found it to be Alprazolam. The 5 findings of the learned Sessions Judge are based on record.
9. Alprazolam is at serial number 30 in Schedule of list of Psychotropic Substances and diazepam at Serial No.43. Chemical Formula at Sl.No.30 :
Alprazolam: 8-Chloro-I-methylI-6-phenyl-4H-s- triazolo. [4,3-a] [1.4] benzodiazepine. Chemical Formula at Sl.No.43: Diazepam :7-Chloro-1, 3 - dihydro - I - methyl -5 - phenylI - 2H -1, 4 - benzodia
- zepin - 2 one
10. The evidence of PW.5 would be relevant. When he was examined, he identified the report/Ex.P12 that was issued by him and confirmed that the sample was containing Alprazolam. The Court questioned as to whether PW.5 could explain about the difference in the spot test conducted by the Excise officials regarding the substance found: "Extract". 6
Court question: Can you explain how there could be a variation in the spot test conducted by the Excise Officials stating the substance as diazepam and the laboratory test revealing the substance as Alprazolam?
Answer: The test confirmed by the excise officials of the spot is not a confirmed one. They sent the sample to the laboratory for further confirmation as they were not certain about the result of the test conducted by them. Both the diazepam and Alprazolam belong to one group of Benzodiazepin and both are sedatives. They were having different melting points. Diazepam is having a range of melting pint between 131 and 135 degrees centigrade and Alprazolam was having 225 degrees centigrade. By thin layer chromatography method also both the substance can be easily distinguished. The method used in the spot analysis was only ruff and ready method and the sample cannot be confirmed with that method. Thus, there could be a variation between the results in both the test.
11. Though the expert tried to explain that the method used in the spot test was only "ruff and ready 7 method" and sample cannot be confirmed with that method, it creates any amount of doubt regarding the prosecution version being correct. The very purpose of conducting spot test is to prima facie conclude regarding the substance. It is not as though the spot test revealed that it was psychotropic substance and to specifically know about the contraband, the same was sent for analysis. As already extracted above, the formula of diazepam is different from Alprazolem. PW.5 specifically stated that both diazepam and Alprazolem belong to one group and both are sedatives. However, they have different chemical formulas and their characteristics also differ.
12. In view of the said discrepancy that has crept into and there being no convincing explanation regarding the method of the spot test that was conducted to determine the seized material being contrary to final report, it creates any amount of 8 doubt. As already stated, the substance was found to be diazepam during 'spot test'. Vague explanation was given that both the products belong to one group. When initially it was determined as 'diazepam', the prosecution cannot take a different stand saying that it was Alprazolam on the basis of chemical examiner report. Benefit of doubt has to be extended to the accused and not the prosecution.
13. Accordingly, this Criminal Appeal is allowed.
_________________ K.SURENDER, J Date: 23.09.2024 mmr