1 NDPS SC 4/2021
IN THE COURT OF THE SPECIAL SESSIONS JUDGE FOR TRIAL OF
THE CASES UNDER THE NARCOTIC DRUGS AND PSYCHOTROPIC
SUBSTANCES ACT, 1985-Cum-I ADDITIONAL DISTRICT JUDGE,
NELLORE
Present:- Sri G. KABARDHI,
I Additional District and Sessions Judge, Nellore.
Friday, this the 26th day of July, 2024.
N.D.P.S. SESSIONS CASE No.4/2021
(Crime No.239/2019 of Nellore Rural Police Station)
Name of Complainant : State : Inspector of Police, Nellore Rural Police Station.
Crime No. and Police : 239/2019 of Nellore Rural Police Station. Station.
1) Adapa Rajesh, S/o. Sanyasi Naidu, Names & description of : 35 years, Kapu by cast4e, R/o. Site-III, the Accused Borabanda, Hyderabad, native of Addasaram village, Rolugunta Mandal, Visakhapatnam District, Driver and Owner of Honda City Crime Car AP 10 BC 5978.
2) Thangimayan Manimala, W/o. Thangimayan, Age: 45 years, Thevar by caste, Thevaram village, Theni District, Tamilnadu.
Under Section 20 (b) read with 8 (c) of Charges framed : Narcotic Drugs and Psychotropic Substances Act.
Plea of the accused : Pleaded ‘Not guilty’.
Finding of the Court : Accused Nos.1 and 2 are found NOT GUILTY.
Sentence or Order : IN THE RESULT, the accused No1 and 2 are found not guilty for the offence under Section 20 (b) read with 8 (c) of Narcotic Drugs and Psychotropic Substances Act, 1985 and they are acquitted under Sec.235 (1) Cr.P.C. The bail bonds of the accused and their surety bonds shall stand cancelled after expiry of six 2 NDPS SC 4/2021 months from the date of this Judgment as contemplated under Section 437-A Cr.P.C. M.O.1-Sample packet of Ganja, is ordered to be destroyed, subject to the provisions of N.D.P.S Act, after expiry of appeal time.
This N.D.P.S Sessions Case coming for hearing before me on 18.07.2024 in the presence of Sri D. Ramana Reddy, Special Public
Prosecutor for State and of Sri K. Suresh, Advocate for the accused No.1 and Sri M. Tarun Singh, Advocate for the accused No.2 upon perusing the material on record and upon hearing the arguments of both sides and having stood over for consideration till this day, this Court delivered the following:
J U D G M E N T
The Inspector of Police, Nellore Rural Police Station, filed charge sheet against the accused Nos.1 and 2 in Cr.No.239/2019 for the offences under Sections 279 I.P.C and 8 read with 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”)
2. The case of the prosecution in brief is that On the night of 11/12.07.2019 A1, the driver of the Car bearing No.AP10BC 5978 drove the car towards Chennai from Vizag agency area with A2 on NH-16 in a rash and negligent manner and dashed the road divider near Sarvepalli canal culvert, as a result of which, the car was badly damaged to its engine. Due to which A1 and A2 left the car and abandoned on road and absconded away. On the report of L.W.1-K.Rajagopal Reddy,
Homeguard (P.W.1) in the Highway patrolling driver preliminarily in this case was registered under section 279 IPC on 12.07.2019 at 9.00hrs and 3 NDPS SC 4/2021 investigated into by L.W.8-K. Sambasiva Rao, S.I. of Police(P.W.5).
L.W.9-V. Srinivasa Reddy, Inspector of Police, Nellore Rural P.S.(P.W.6), took up further investigation in this case on 12.07.2019, discovered 30 packets of ganja weighing about 62 Kgs in the above Car at the time of observation in the presence of L.W.3-Ozili Gunnaiah (P.W.2), L.W.4-P.
Ramesh Babu, VRO (P.W.3), drafted observation mahazar and seized the crime car and the contraband. Based on the investigation, Inspector of
Police added Section 102 Cr.P.C and Section 8 read with 20 of N.D.P.S.
Act, to Section 279 I.P.C and continued investigation. During the course of investigation, he forwarded the samples of seized contraband to SFSL for analysis.
The Inspector of Police made enquiries, suspects its owner Adapa
Rajesh, residing at Hyderabad. During the course of investigation on 23.10.2019 t about 11.00 hrs A1, the owner cum driver of crime car was arrested at Ramesh Reddy Nagar, Nellorel when he came to Nellore to surrender in Court and recorded his confession in the presence of L.W.3-
Ozili Gunnaiah (P.W.2) and L.W.5-Kakumuru Sri Hari, V.R.O.. A1 admitted the offence that he along with A2 modified his car, created a secret chamber to transport ganja. After due interrogation A1 was sent for remand. Basing on the confession of A1, A2 was implicated in this case and after search came to know that A2 was at Central Prison, Vizag. And
A2 was produced in this case on PT warrant and she obtained conditional bail vide Crl.M.P.No.15/2020 on 6.2.2020 and A2 was interrogated in the presence of L.W.6-A.Ashritha (P.W.4) and L.W.7-Kollu Madhavi. A2 admitted the offence committed by her. Hence the charge sheet.
4 NDPS SC 4/2021
3. This Court took cognizance under Section 20 (b) read with 8 (c) of Narcotic Drugs and Psychotropic substances Act, 1985 against the accused Nos.1 and 2.
4. On appearance of the accused No.1 and 2, copies of case documents were furnished to them, as contemplated under Section 207
Cr.P.C.
5. A charge under Section 20 (b) read with 8 (c) of N.D.P.S. Act was framed against the accused Nos.1 and 2 , read over and explained to them in Telugu, for which, they pleaded not guilty and claimed to be tried.
6. On behalf of Prosecution, P.W.1 to P.W.6 are examined and Ex.P.1 to Ex.P.14 and M.O.1 are marked.
7. After completion of Prosecution evidence, the accused 1 and 2 are examined under Section 313 Cr.P.C explaining the incriminating material appearing against them, for which, they denied the prosecution evidence and when the accused are asked to enter upon into defence, they reported no defence evidence.
8. Heard arguments on both sides.
9. Now, the point for determination is:
“Whether the prosecution has proved the guilt of the accused Nos.1 and 2 for the offence with which they are charged beyond all reasonable doubt?”
P O I N T : - 5 NDPS SC 4/2021
10. On behalf of prosecution P.W.1 to P.W.6, Ex.P1 to Ex.P14 and
M.O.1 are examined.
P.W.1 i.e. driver in Naidupet P.S., Nellore deposed before this 11.
Court that on 11.07.2019, at about 09.00 PM, he attended night patrolling duty and found one Honda City Motor Car bearing
Regn.No.Ap.10.BC.5978, which was met with the accident near
Surveypalli canal on NH-16 Highway. He further deposed that he did not notice anyone at the place of accident. Then, on the next day morning at about 08.00 AM, he informed to Nellore Rural Police Station about the accident, by giving a report to the Police. Thereafter, C.I. of Police, SI of
Police and other police constables, himself went to the place of accident, from there, he went to his house. Subsequent inspection was conducted by CI and SI of Police. Ex.P1 is the report given by him to the police. The car was dashed to the Culvert and was totally damaged. While coming to the cross-examination, he deposed that in Ex.P1 it was mentioned that the car was dashed to the divider which is situated on the right side but, he did not specifically mentioned about the damages occurred to the car in Ex.P1 report, as well as in his statement. On his instructions, one
Police Constable scribed the report.
12. P.W.2-O. Gunnaiah, the then VRO of deposed in his evidence that on 12.07.2019, at 09.00 AM, while he was in Vellanti village, Nellore Rural Police called him, on that he went to Nellore Rural Police Station. LW4-Ramesh
Babu, who is VRO also came to the police station. He informed that there was an accident near Nellore Bye-pass and requested them to act as mediators, on 6 NDPS SC 4/2021 that they followed him. He himself, LW4-Ramesh Babu, V.R.O., CI and SI of
Police, and police constables went to NH16 Nellore Bye-pass road. There, they found one car was dashed to the divider and it was badly damaged. The police removed that car from that place and on search of the back side seat, they noticed 30 ganja packets 30. When they were weighed, each packet contains 2.010 grams to 2.550 grams of ganja and some of the packets contain 2.00 kgs.
On weighing the entire ganja, it comes to 62.150 grams of ganja. The police seized the entire ganja and proceedings were taken and they obtained their signatures in the said panchanama. Ex.P2 is the Scene Observation Mahajar,
dated 12.07.2019. On 23.10.2019, at 09.00 AM, the CI of Police Nellore Rural
called him, on that he went to Nellore Rural Police Station, from there, himself and L.W.5-Sreehari, V.R.O., CI, SI of police and other Police Constables went to Janatha Mess, Ramesh Reddy Nagar, Nellore. At about 09.30 AM, on seeing them, one person tried to escape from that place, there, the police caught hold him. The police enquired him in their presence, and he stated that his name is
Rajesh and he stated that he is doing ganja business and caused the accident, thereby due to fear, the police might have caught hold them, he went to
Hyderabad, and Manimala, another woman went to Chennai. Thereafter, the police came to Borubanda for apprehending him, on that he went to Nellore, to approach one Advocate with the help of his brother, meanwhile the police caught hold him. The entire confession was got drafted there itself. Ex.P3 is the said mediatornama, dated 23.10.2019. But, he deposed that hecannot identify the person, who was arrested on that day, because of lapse of time.
13. During his cross examination, he deposed that no requisition was given to him by the police to act as mediators. On the oral instructions of
Tahsildar, he went to the police station. He did not make any entry in the movement register. He did not inform in writing about his acting as a mediator 7 NDPS SC 4/2021 in Ex.P2 and Ex.P3. One Police constable scribed Ex.P2. It is not found in
Ex.P2 that it was scribed by one police constable. After going through the contents of Ex.P2, he signed in it. The description of ganja is not mentioned in
Ex.P2. He did not put his seal and his rank beneath his signature. The car was damaged towards its right side. He deposed that it is not mentioned in Ex.P2 about the damages occurred on the right side. The police did not try to secure any local inhabitants of Ramesh Reddy Nagar area.
14. P.W.3-Pasupuleti Ramesh Babu, VRO of Chinthareddypalem village of
Nellore Rural Mandal, deposed in his evidence that on 12.07.2019, at about 11.00 AM, the CI of police Nellore called him to police station and requested him to act as panchayatdar. Then he himself and PW2 went to the NH-16 near
Surveypalli canal, there, they found one Honda City Car bearing
Regn.No.AP.10.BC.5978, which was badly damaged in front side and also back side of the driver. By the time they reached, the CI, SI of Police and police constables were there. In their presence, the car was searched and found 30 packets of ganja. On weighing it came to 62.215 grams. The entire proceedings was reduced into writing by way of Panchanama. He identified his signature in Ex.P2. During his Cross examination, he deposed that the MRO orally instructed them, to go to the scene of offence and no written permission was given to them. The descriptive particulars of ganja is not mentioned in
Ex.P2 and it is a dry ganja. It is not mentioned in Ex.P2 who scribed it. He denied the suggestion that he signed in Ex.P2 in the police station.
15. P.W.4-Attirala Asritha, Ward Women Protection Secretary, Kotha
Sangham Sachivalayam, Kodurupadu, deposed that on 06.02.2020, the CI of
Police informed her by phone and asked her to come to Nellore Rual P.S., on that she went there. She deposed that she knows one Madhavi. In the police 8 NDPS SC 4/2021
Station, A2 was interrogated by the Inspector of Police, Nellore Rural P.S. in their presence in respect of this crime. She confessed that A1 got arranged the bail for A2 in respect of other crime in Visakhapatnam Sub-Jail, whereunder, A1 and A2 are having acquaintance with each other. She also confessed that on her advise, A1 purchased a second car bearing Regn.No.AP.10.BC.5978 and arranged one box for keeping the ganja in it and like so three or four times the ganja was transported in the car. She also further confessed that while transporting 60 Kgs of ganja in the car, the car met with an accident, A1 went to
Hyderabad and A2 went to Chennai. Thereafter, she was caught hold and kept in Central Prison, Visakhapatnam, where, she came to know that A1 was arrested in this crime, and a P.T. warrant was also issued against her in this crime, and she was brought under arrest in this crime by the police by executing a P. T. Warrant. At the time, when she went to the police station to sign as per the conditions of bail order, at that time, they were called to police station. In their presence, the entire confession of A2 was made. During her cross- examination, she deposed that she orally informed to Administrator, that she was called by the police to act as a mediator, but she did not give any reason in writing. Kolluru Madhavi is working in Mallithota, Kissan Nagar, Nellore, and the distance between her Sachivalayam and Police Station is 7 kilometers. She deposed that she came to police station within 15 minutes by her bike, which was dropped by her husband. The CI of Police called her by phone in between 09.45 A.M. to 10.00 AM. She deposed that she does not know the mode of transport how L.W.7-K. Madhavi came to the police station. No summons are served on her. The police station is situated in 36th Division of Nellore, and it does not comes under her jurisdiction. In Ex.P4 in page.No.3, "Ganjayi" was written additionally.
16. P.W.5-K. Sambasiva Rao, the then S.I. of Police, Nellore Rural Police 9 NDPS SC 4/2021
Station, deposed that on 12.07.2019, while he was in station, the complainant namely Kota Rajagopal Reddy-P.W.1 came to the Police station and given complaint to him and he registered the case in Cr.No.239/2019 for the offence under section 279 of I.P.C and issued F.I.R Through him, Ex.P5 F.I.R is marked. He intimated about the registering of the F.I.R to C.I. of Police and thereafter himself and C.I. of Police went to the scene of offence. There, they found one car bearing Regn.No.AP.10.BC.5978. On checking the said car in the presence of mediators/P.W.2 and P.W.3, C.I. found 30 packets of ganja in the car. Then, after weighing, the said ganja came to Kgs.62.215 grams of ganja.
17. P.W.6-V. Sreenivasa Reddy, the then C.I. of Police in Nellore Rural
Station, deposed in his evidence that on 12.07.2019, P.W.5 informed him about this crime.No.239/2019 under section 279 of IPC and he expressed suspicion about the Honda City car, on that he went to the scene of offence and found the damages to the car, which is facing towards eastern side margin. He also found dry leaves of ganja packets, then, he secured the presence of the mediators P.W.2 and P.W.3 and in their presence, he searched the car and found 30 ganja packets in it. On weighing, it came to 62.215 Kgs of ganja.
Then, he clearly mentioned the weighing of each packet in the mahazar. He also took the photographs of the scene of offence and prepared rough sketch.
He also filed alteration memo before the IV Additional Judicial magistrate of
I Class, Nellore, to alter the section of law under the N.D.P.S Act. Ex.P6 is the
rough sketch. Ex.P7 is the Alteration memo altering the section of law from
Under section 279 of IPC to Under Section 8(C) r/w. 20 of N.D.P.S Act 1985.On 15.07.2019, he secured the information from R.T.A, Nellore, about the vehicle particulars and on the information furnished by R.T.A, they came to know that the vehicle belong to one Adapa Rajesh of Visakhapatnam District.
10 NDPS SC 4/2021
18. P.W.6 further deposed that on 21.07.2019, on his instructions, the SI of
Police recorded the statement of L.W.2-Mani Maha Lakshmi who is the sister of
A1 to know about the information of A1. On 23.10.2019, on credible information of the accused.No.1, he secured the presence of mediators L.W.5-K. Sreehari,
V.R.O. and P.W.2 and along with his staff, proceeded to Janatha Hotel, Ramesh
Reddy Nagar, Nellore. On suspicion, they detained him and on further enquiry, they confessed the offence and told that he along with A2 purchased the said ganja from one unknown person of Visakhapatnam, and while they were carrying the same in the vehicle, when they reached Surveypalli branch Canal,
Nellore, the car met with the accident, on that they left the car and went away.
Ex.P3 is the confession mahazar.. In Ex.P3, A1 and mediators and himself signed in it. He was brought to the police station and after completing the formalities, he was sent for judicial remand. On 06.02.2020, A2 appeared
before the police station as per the orders in Crl.M.P.No.15/2020. Then he got
recorded her confessional statement by securing the mediators P.W.4 and LW7-
K. Madhavi. He himself, P.W.4 and K. Madhavi and A2 signed in Ex.P4. Ex.P8 is the memo dated 23.10.2019 filed by him adding A2. Then, he sent the seized sample packets to the R.F.S.L for the purpose of Chemical analysis through
S.D.P.O through Court. Ex.P9 is the R.F.S.L report, dated 26.09.2019. M.O.1 is the sample packet. Hecame to know that on 24.12.2022, the seized property was destroyed by the Drugs Disposal Committee under a cover of panchanama and photographs which is Ex.P10. Ex.P11 is the Annexure-III i.e., Certificate of
Destruction. At the time of arrest of accused.No.1, he issued notices under section 50 Cr.P.C i.e. Ex.P12, Ex.P13 and Ex.P14.
19. When coming to the cross examination, he deposed that he has not issued any summons to the mediators to act them as mediators. He sent 11 NDPS SC 4/2021 his staff to secure the mediators by 11.00 A.M. The mediators directly came to the scene of offence. According to the rough sketch, the divider is in the middle of the road. P.W.1 in his report got mentioned that the car hit the divider. But, he did not show in the rough sketch that the car hit the divider. Witness adds that after dashing to the divider, the car further went to the eastern side of the road and stopped. The word ‘yendina’ is found on the above of the lines in the scene observation report. He further deposed that he did not call for any explanation from P.W.1 about the delay in giving report also. There are no official seals beneath the signatures of the V.R.Os. He himself scribed Ex.P2, but he did not get mention that he scribed it, so also, it is not specifically mentioned in
Ex.P2 about the weighing of ganja and also about the particulars of electronic weighing machine. He did not make any enquiry with regard to the treatment taken by the driver of the car. He did not cite the S.I. of police, who recorded the statement of L.W.2-G. Mani Maha Lakshmi as a witness in this case. It is not mentioned in Ex.P2 about the lifting of the samples. He did not issue any notices to the mediators by the time of
Ex.P2 and Ex.P3. The rest of the cross-examination is with full of denial of suggestions.
20. This is a case where at first, P.W.1, who is on patrolling duty, saw one car bearing No.AP-10-BC-5978 hit to divider and met with an accident, on that he gave report to the police. He did not verify the car.
He just gave report to the police about the accident. Thereafter, on the next day, Nellore Rural Police called him to the police station, then he and
L.W.4-P. Ramesh Babu, V.R.O., C.I., S.I. and another constable went to 12 NDPS SC 4/2021 the scene of offence where the accident took place. While removing the car from the accident spot, they noticed 30 ganja packets, then immediately, they weighed the said ganja, which came to Kgs.62.150 gms. Then, the entire ganja was seized. Ex.P2 is the scene observation mahazar. Thereafter, on 23.10.2019, A1 was arrested at Janatha Mess,
Ramesh Reddy Nagar and his confession was recorded under Ex.P3.
After that A2 appeared before the police station on 6.2.2020 as per the orders in Crl.M.P.No.15/2020. Then the C.I. i.e. P.W.6 got recorded her confession statement by securing mediators P.W.4 and L.W.7-K.
Madhavi.
21. Here Ex.P1 is the report, Ex.P2 is the scene observation mahazar, under which, the ganja was seized by the police in the presence of Village
Revenue Officers i.e. P.W.2 and P.W.3.Thereafter, A1 was arrested on 23.10.2019 and Ex.P3 is the confession of A1 was recorded. Thereafter, on 6.2.2020, A2 was arrested and a separate confession mahazar of A2 was recorded. In fact, nothing was seized from the possession of either
A1 on 23.10.2019 or A2 on 06.02.2020. So, the entire case rests on the confession statements of A1 and A2, which is not admissible in evidence because it was got recorded by the police, but not before Gazetted
Officer. But, those confessions were recorded in the presence of Village
Revenue Officers. Ex.P2 is the scene observation mahazar under which the ganja was seized. P.W.2, the V.R.O did not speak about lifting of the samples. Even Ex.P2 does not disclose about the lifting of samples.
22. The Learned Counsel for the accused submitted several judgments in support of his contention that the police did not follow 42 (1) 42 (2) and 13 NDPS SC 4/2021
Section 57 of N.D.P. S Act. They also did not follow Section 52A (1)(2)(3)(4) and Sections 55, 62, 63 N.D.P.S. Act and also standing procedure, 1989 for sampling is not followed. All the mandatory provisions are not followed.
23. The Learned Counsel for the accused submitted a Judgment in between “Yusuf @ Asif Vs. State” reported in “Criminal Appeal
No.3191 of 2023”, wherein it is held that:
10. In order to test the above submissions, it would be relevant to refer to the provisions of Section 52A (2), (3) and (4) of the NDPS
Act. The aforesaid provisions provide for the procedure and manner of seizing, preparing the inventory of the seized material, forwarding the seized material and getting inventory certified by the
Magistrate concerned. It is further provided that the inventory or the
photographs of the seized substance and any list of the samples in connection thereof on being certified by the Magistrate shall be recognized as the primary evidence in connection with the offences alleged under the NDPS Act.
11. For the sake of convenience, relevant subsections of Section 52A of the NDPS Act are reproduced hereinbelow:
“52A. Disposal of seized narcotic drugs and psychotropic substances.
(2) Where any [narcotic drugs, psychotropic substances,
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of [such drugs or substances or conveyances] and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the 14 NDPS SC 4/2021 correctness of any list of samples so drawn.
(3) Where an application is made under sub section (2), the
Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under subsection (2) and certified by the
Magistrate, as primary evidence in respect of such offence.”
12. A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.
13. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under sub- sections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of subsection (2) of Section 15 NDPS SC 4/2021 52A of the NDPS Act.
14. It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn.
15. In Mohanlal’s3 case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer in-charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial.
24. The Learned Counsel for the accused submitted another Judgment in “Mohammed Khalid Vs The State of Telangana” in Criminal Appeal
No.1610 of 2023 of Supreme Court, wherein it is held that:
22. 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 16 NDPS SC 4/2021 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 suffers from highest degree of perversity.
25. Resultantly, 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. They are in custody and shall be released forthwith, if not wanted in any other case.
26. The appeals are accordingly allowed.
25. The Learned Counsel for the accused submitted another
Judgments in “Thounaojam Purnima Singh vs. Union of India And 17 NDPS SC 4/2021
Anr” reported in “Criminal Appeal No.66/2020”, wherein it is held that:
13. Sub-Section (2) of Section 51(A) of the NDPS Act provides that after seizure of the narcotic drugs or psychotropic substances, the same shall be forwarded to the Officer-In- Charge of the nearest police station or to the officer empowered u/s 53 of the NDPS Act and such officer as referred to in Sub-section (2) of Section 52-
A shall prepare an inventory of the narcotic drugs or psychotropic substance and shall make an application to the Magistrate for the purpose of –
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.
14. Sub-Section (3) of Section 52A provides that where an application is made under Sub- section (2), the Magistrate shall as soon as may allow the application. Thus, Section 52A of the Act envisages that samples shall be taken in presence of the
Magistrate. It may be mentioned herein, that as per the Standing
Order 1 of 1989 (paragraph 2.2), sample must be taken from the seized contraband on the spot at the time of recovery itself.
However, noticing the conflict between the said provision in para 2.2 of the standing order of 1989 as well as the provision of Section 52-A of the NDPS Act, the Apex Court in Union of India Vs.
Mohanlal , (2016) 3 SCC 379, clearly mandated that the sample shall be drawn under the supervision of the Magistrate as envisaged in Section 52-A of the NDPS Act. The Apex Court held as under :- "15. It is manifest from Section 52A (2)(c) (supra) that upon seizure of the contraband the same has to be forwarded either to the officer 18 NDPS SC 4/2021 in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory (b) certifying photographs of such drugs or substances taken before the Magistrate as true and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn. Sub-section (3) of Section 52- A requires that the Magistrate shall as soon as may be allow the application.
16. Sub-section (3) of Section 52- A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer in charge of the Police Station or the officer empowered, the officer concerned is in law duty bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.
17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the
Magistrate does not in the above scheme of things arise. This is so
especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub- section (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure.
31.1 . No sooner the seizure of any Narcotic Drugs and 19 NDPS SC 4/2021
Psychotropic and controlled Substances and Conveyances is effected, the same shall be forwarded to the officer in-charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the
Magistrate with an application under Section 52A(ii) of the Act,
which shall be allowed by the Magistrate as soon as may be required under Sub- Section 3 of Section 52A , as discussed by us in the body of this judgment under the heading 'seizure and sampling'.
The sampling shall be done under the supervision of the magistrate as discussed in paras 13 and 14 of this order."
15. From the mandate of the Apex Court in Mohanlal 's case(supra), it is abundantly clear that sample must be taken under the direct supervision of the Magistrate, which was not done in the instant case. Even the Standing Order 1 of 1989 was also not complied with in respect of taking sample. Therefore, the violation of Section 52A of the NDPS Act as well as the mandate of the Supreme Court in Mohanlal 's case in respect of taking sample of the contraband is apparent in the instant case.
23. It is apparent from the impugned judgment that learned trial court along with other materials also relied on the confessional statement of the accused recorded u/s 67 of the NDPS Act. The
Apex Court in Tofan Singh Vs. State of Tamil Nadu (supra) held as under –
(i) That the officers who are invested with powers under section 53 of the NDPS Act are "police officers" within the meaning of section 25 of the Evidence Act, as a result of which, any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act .
25. Learned counsel for the appellant also contended, placing reliance on State of Gujrat Vs. Ismail U. Haji Patel and Anr.
20 NDPS SC 4/2021 (supra) that, no malkana register or any other document was produced to establish the safe custody of the seized contraband. I have considered the evidence brought on record. In view of the facts, that the process of search and seizure and taking sample of contraband was doubtful for non-compliance with the statutory requirement and procedures and that the fundamental facts have not been established beyond reasonable doubt, therefore, the question of safe custody of the contraband becomes merely academic. Be that as it may, what is apparent from the evidence and materials brought on record is that the prosecution has failed to establish the fundamental facts of search, seizure and taking sample beyond all reasonable doubt, and as such, the accused/appellant was at least entitled to benefit of doubt.
Therefore, in my considered view, the appeal deserves to be allowed.
26. The Learned Counsel for the accused submitted another Judgment “Mehboob vs. State of U.P.” reported in “Criminal Appeal No.6794 of 2019”, wherein it is held that:
2.9. The sample in duplicate should be kept in heat-sealed plastic bag as it is convenient and safe. The plastic bag container should be kept in a paper envelope which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should also bear the No. of the package(s)/container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo.
The seals should be legible. This envelope along with test memos should be kept in another envelope which should also be sealed and marked "Secret- Drug sample/test memo", to be sent to the chemical laboratory concerned."
As per evidence available on record it is found that the sampling of 21 NDPS SC 4/2021 the poppy straw was not taken as representative sampling. There were 12 packets of one kg., each bearing poppy straw in plastic gunny bag. Out of the 12 packets, 11 packets were sealed in a plastic gunny bag on the spot; while one packet of poppy straw which was 12th one was sent for examination to Forensic Science
Laboratory (in short FSL) as such, out of 12 packets only one packet was sent for examination and no sampling was taken in any quantity from the remaining 11 packets of poppy straw.
The FSL report Exb.Ka-6 is on record. As per FSL report the result of poppy straw which was sent in a polythene bag having 950 gms was found to be poppy straw.
The Hon'ble Apex Court held in Criminal Appeal No. 1397 of 2007
Union of India Vs. Bal Mukund and others vide judgment dated 31st
March 2009 held in paragraph 39 as under:- " There is another aspect of the matter which can not also be lost sight of Standing Instruction No. 1/88, which had been issued under the Act, lays down the procedure for taking samples. The High
Court has noticed that PW-7 had taken samples of 25 grams each from all the five bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law."
Therefore, in the case at hand the violation of the Standing Order
dated 1/89 dated 16.9.1989 Section II General Procedure for
Sampling etc., has been made, because out of 12 packets of poppy straw which was found in as plastic gunny bag from the possession of the appellant only one packet was sent to the testing to the FSL and no representative sampling was taken from the remaining 11 packets. As such, there is nothing on record to support the prosecution case that in the 11 remaining packets the narcotics drugs was also poppy straw.
15. Learned counsel for the appellant has also submitted that there 22 NDPS SC 4/2021 is no evidence adduced on behalf of the prosecution that the recovered poppy straw was kept in a sealed cover and specimen was made in a proper way in safe custody from the date of recovery up to the date of sending one packet for testing to the
FSL. No malkhana register was produced and nor the same was proved on behalf of the prosecution. Therefore, there is violation of section 55 of the Act.
27. The punishment provided under Narcotic Drugs and Psychotropic
Substances Act is stringent punishment, thereby, all the provisions which are incorporated in the said Act are to be followed mandatorily. When any of the mandatory provisions are not followed properly and it is settled law that the accused is entitled for acquittal on those grounds for non- following the provisions, which are mentioned in the N.D.P.S. Act.
28. The Learned Special Public Prosecutor that there is no animosity between the accused and the police and there is no necessity for the police to foist a false case against the accused by collecting 8.300 Kgs of ganja, however, the rules are to be followed. When there is a mandatory provision incorporated in the Act, all those mandatory provisions are to be followed. i.e. 42 (1) (2) of N.D.P.S Act.
29. In a judgment in Sukhdev Singh Vs. State of Haryana dated 13.12.2012”, it is observed that:
22. There is patent illegality in the case of the prosecution and such illegality is incurable. This is a case of total non-compliance, thus the question of substantial compliance would not even arise for consideration of the Court in the present case. The twin purpose of the provisions of Section 42 which can broadly be stated are that: (a) It is a mandatory provision which ought to be 23 NDPS SC 4/2021 construed and complied strictly; and (b) compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably post-recovery.
23. Once the contraband is recovered, then there are other provisions like 57 which the empowered officer is mandatorily required to comply with. That itself to some extent would minimize the purpose and effectiveness of Section 42 of the NDPS Act. It is to provide fairness in the process of recovery and investigation which is one of the basic features of our criminal jurisprudence. It is a kind of prevention of false implication of innocent persons.
The legislature in its wisdom had made the provisions of Section 42 of NDPS Act mandatory and not optional as stated by this
Court in the case of Karnail Singh(supra).
24. Thus, the present appeal merits grant of relief to the accused.
We accordingly set aside the judgment of the High Court as well as the Trial Court and acquit the accused of an offence under
Section 15 of NDPS Act. We direct the accused to be set at liberty forthwith, if not required in any other case.
25. Before we part with this file, we consider it the duty of the
Court to direct the Director General of Police concerned of all the States to issue appropriate instructions directing the investigating officers to duly comply with the provisions of Section 42 of NDPS Act at the appropriate stage to avoid such acquittals.
Compliance to the provisions of Section 42 being mandatory, it is the incumbent duty of every investigating officer to comply with the same in true substance and spirit in consonance with the law stated by this Court in the Case of Karnail Singh (supra).
This Judgment is in respect of Section 42 of N.D.P.S. Act.
30. In another Judgment of 5 Judges in KARNAIL SINGH VS STATE
OF HARYANA. Total non-compliance of Section 42 (1) (2) is impermissible and the Bench comprising of 5 Judges have discussed 24 NDPS SC 4/2021
in detail about the non-compliance of Section 42 (1) and (2) of
N.D.P.S. Act.
31. The Learned Counsel also submitted another judgment reported in “1997 Crl.L.J. 4532” in “Alla Baksh …Appellant v. State of
A.P…Respondent”, wherein it was held that the mandatory provisions of
Section 42 (1) 42 (2) are not followed, thereby, it is fatal to the case of prosecution.
32. In this case, there is total non-compliance of Section 42 of
N.D.P.S. Act. In view of the violation of clear mandatory provisions of
Section 42 (1) and 42 (2) of N.D.P.S Act, thereby, the prosecution has failed to bring home the guilt of accused beyond reasonable doubt.
33. The Learned Special Public Prosecutor submitted under Section 54 of N.D.P.S Act, the presumption from possession of illicit articles is to be taken into consideration i.e. if the property is seized from the possession of the accused, it is the burden on the part of the accused to prove his innocence and presumption is in favour of the prosecution and he argued that the accused has to explain under what circumstances, he was in possession of ganja and he has to prove his innocence, otherwise, the prosecution story has to be accepted and the accused is liable to be convicted and he also submitted a Judgment in support of his contention i.e. “BALWINDER SINGH (BINDA) Versus THE NARCOTICS
CONTROL BUREAU” and also “SATNAM SINGH VERSUS THE
NARCOTICS CONTROL BUREAU”. He further submitted that even when 25 NDPS SC 4/2021 compliance of Section 42 is not there, but still in view of Section 54 of
N.D.P.S Act, the accused is liable for conviction, for which, the Learned
Counsel for the accused seriously argued that “the mandatory requirements which are to be complied by the Police Officials are to be strictly complied and the very non-compliance of the statutory requirements under Section 42 and Section 57 and other provisions under
N.D.P.S Act entitled the acquittal and Section does not come in the way and he further submitted several judgments in support of his contention.
34. Section 54 reads thus:
[54. Presumption from possession of illicit articles:- In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of:
(a) any narcotic drug or psychotropic substance or controlled substance:
(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated; © any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or
(d) Any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily]
35. The Learned Special Public Prosecutor submitted a Judgment in 26 NDPS SC 4/2021
Criminal Appeal No.1136/2014 and Criminal Appeal No.1933/2014, which are disposed on 28.09.2023 by the Hon’ble Supreme Court, in which, the Hon’ble Supreme Court exhaustively dealt with almost all the legal provisions under N.D.P.S Act and discussed several aspects.
In Para No.44 of the said Judgment, it is observed that:
This Court in Baldev Singh (supra) held that Section 50 would come into play only in cases where search of a person is conducted under the NDPS Act as contemplated under Section 42. Where there is no search of a person under the NDPS Act, Section 50 would have no application.
In the same Judgment, is observed in para No.47:
47. As to what would be the consequences of a recovery made in violation of Section 50, it was observed in Baldev Singh (supra) that it would have the effect of rendering such incriminating material inadmissible in evidence and hence, cannot be relied upon to hold the accused guilty for being found to be in unlawful possession of any contraband. The Court further held that it would not impede the prosecution from relying upon recovery of any other incriminating article in any other independent proceedings. It was further held that the burden of proving that the conditions of Section 50 were complied with, would lie upon the prosecution to establish. The relevant observations are being reproduced hereunder:— “32. However, the question whether the provisions of Section 50 are mandatory or directory and, if mandatory, to what extent and the consequences of non-compliance with it does not strictly speaking arise in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched. Therefore, without expressing any opinion as to whether the provisions of Section 50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, we hold that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty of the investigating officer (empowered officer) to ensure that search of the person (suspect) concerned is conducted in the manner prescribed by Section 50, by intimating to the person concerned about the existence of his right, that if he so requires, he shall be searched before a gazetted officer or a Magistrate and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate would cause prejudice to the accused and render the recovery of the illicit article suspect and vitiate the conviction and sentence of the accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered during a search conducted in violation of the provisions of Section 50 of the Act. The omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it would render his conviction and sentence unsustainable. The 27 NDPS SC 4/2021 protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a gazetted officer or a Magistrate, if he so requires, is sacrosanct and indefeasible — it cannot be disregarded by the prosecution except at its own peril.
33. The question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the court on the basis of the evidence led at the trial and the finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50 and, particularly, the safeguards provided in that section were complied with, it would not be advisable to cut short a criminal trial.
Xxxx
45. … Prosecution cannot be permitted to take advantage of its own wrong. Conducting a fair trial for those who are accused of a criminal offence is the cornerstone of our democratic society. A conviction resulting from an unfair trial is contrary to our concept of justice. Conducting a fair trial is both for the benefit of the society as well as for an accused and cannot be abandoned. While considering the aspect of fair trial, the nature of the evidence obtained and the nature of the safeguard violated are both relevant factors. Courts cannot allow admission of evidence against an accused, where the court is satisfied that the evidence had been obtained by a conduct of which the prosecution ought not to take advantage particularly when that conduct had caused prejudice to the accused. If after careful consideration of the material on record it is found by the court that the admission of evidence collected in search conducted in violation of Section 50 would render the trial unfair then that evidence must be excluded. In R. v. Collins, (1987) 1 SCR 265 (Canada), the Supreme Court of Canada speaking through Lamer, J. (as his Lordship, Chief Justice of the Supreme Court of Canada then was) opined that the use of evidence collected in violation of the Charter rights of an accused would render a trial unfair and the evidence inadmissible. … xxxx
55. We, therefore, hold that an illicit article seized from the person of an accused, during search conducted in violation of the safeguards provided in Section 50 of the Act, cannot by itself be used as admissible evidence of proof of unlawful possession of the contraband on the accused. Any other material/article recovered during that search may, however, be relied upon by the prosecution in other/independent proceedings against an accused notwithstanding the recovery of that material during an illegal search and its admissibility would depend upon the relevancy of that material and the facts and circumstances of that case.” (Emphasis supplied)
50. This Court ultimately summed up its findings with the following ten conclusions reproduced below:— “57. On the basis of the reasoning and discussion above, the following 28 NDPS SC 4/2021 conclusions arise: (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing; (2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused; (3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act; (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair.
(5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut-short a criminal trial; (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the concerned 29 NDPS SC 4/2021 person of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law; (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search; (8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act.
(9) That the judgment in Pooran Mal v. Director of Inspection (Investigation), (1974) 1 SCC 345, cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search; (10) That the judgment in Ali Mustaffa’s case correctly interprets and distinguishes the judgment in Pooran Mal’s case and the broad observations made in State of H.P. v. Pirthi Chand, (1996) 2 SCC 37, and State of Punjab v. Jasbir Singh, (1996) 1 SCC 288, case are not in tune with the correct exposition of law as laid down in Pooran Mal’s case.” (Emphasis supplied)
The above Judgment which is submitted by the Learned Special Public
Prosecutor is in respect of Section 50 of N.D.P.S Act. There is no dispute with regard to the said proposition of law. Section 54 presumption of
N.D.P.S Act as contended by the Learned Public Prosecutor is not discussed in detail in the said Judgment. Thereby, this Judgment is not helpful to the case of prosecution.
36. The Learned Counsel for the Accused submitted a Judgment reported in “Smt. Najmunisha v. The State of Gujarat”. That is an 30 NDPS SC 4/2021 elaborate Judgment on the provisions of N.D.P.S. Act under Section 50,
Section 42 (1) and (2) and Section 41 (1) and (2), Section 67 of N.D.P.S.
Act and Section 6 of Indian Evidence Act. Tofan Singh case was discussed elaborately in the said Judgment and Karnail Singh Vs. State of Haryana was also discussed, which is in respect of Section 42 (1) & 42 (2) of N.D.P.S. Act.
In that Judgment, it was also observed in para No.23 in respect of
Section 54 of N.D.P.S Act and they also discussed about Madan Lal v.
State of Himachal Pradesh. Their Lordships also discussed Balbir
Singh Case in that Judgment.
In page No.471, Para No.50, it is observed that:
50. The evidentiary value of confessional statements recorded under Section 67 of the NDPS Act 1985 was dealt with by this Court in the case of Tofan Singh (supra). As per the majority verdict delivered by 3-Judges’ Bench in this case has held that the powers conferred on the empowered officers under Section 41 and 42 of the NDPS Act 1985 read with Section 67 of the NDPS Act 1985 are limited in nature conferred for the purpose of entry, search, seizure and arrest without warrant along with safeguards enlisted thereof. The “enquiry” undertaken under the aforesaid provisions may lead to initiation of an investigation or enquiry by the officers empowered to do so either under Section 53 of the NDPS Act 1985 or otherwise. Thus, the officers empowered only under the aforesaid provisions neither having power to investigate nor to file a police report meet the test of police officer for the purpose of Section 25 of the IEA 1872. Consequently, the bar under Section 25 of the IEA 1872 is not applicable against the admissibility of confessional statement made to the officers empowered under Section 41 and 42 of the NDPS Act 1985. 51. Furthermore, it was also held by this Court that Section 67 is at an antecedent stage to the investigation, which occurs after the empowered officer under Section 42 of the
NDPS Act 1985 has the reason to believe upon information gathered in an enquiry made in that behalf that an offence under NDPS Act 1985 has been committed 472 [2024] 4 S.C.R. Digital Supreme Court Reports and is thus not even in the nature of a confessional statement. Hence, question of its being admissible in trial as a confessional statement against the accused does not arise.
31 NDPS SC 4/2021
52. The same, therefore, cannot be considered to convict an accused person under the NDPS Act 1985. A reference at this stage may be made to the majority view in the 3-Judges’ Bench decision wherein it was held as follows in paragraph number 158: “158. We answer the reference by stating: 158.1. That the officers who are invested with powers under Section 53 of the NDPS Act are “police officers” within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act. 158.2. That a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act. 53. By virtue of the decision in Tofan Singh (supra), the benefit is to be granted to the appellants herein in regard to the inadmissibility of their statements under
Section 67 of the NDPS Act 1985. 54. In the light of the above, these appeals are allowed by setting aside the impugned judgment of the High Court as well as that of the Trial Court. The appellants are acquitted of the charges framed against them by giving benefit of doubt.
37. In the Judgment submitted by the Counsel for the accused, it is also discussed about Section 54 of N.D.P.S Act. Thus, in all, under any circumstances, total i.e. the non-compliance of Section 41 (1) and (2),
Section 42 (1) and (2) and Section 67 and other mandatory provisions which are strictly complied by the Investigating Agency has to be followed.
Then only the presumption under Section 54 of N.D.P.S Act will comes into play. Without following the mandatory requirements which are enshrined under N.D.P.S Act, the prosecution now can’t say that the seizure was already proved and it is the burden on the part of the accused to prove his innocence.
38. In view of non-compliance of the all the mandatory provisions, it 32 NDPS SC 4/2021 can be said that the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt and the accused 1 and 2 entitled for acquittal.
39. IN THE RESULT, the accused Nos.1 and 2 are found not guilty for the offence under Section 20 (b) read with 8 (c) of Narcotic Drugs and
Psychotropic Substances Act, 1985 and they are acquitted under Sec.235 (1) Cr.P.C. The bail bonds of the accused and their surety bonds shall stand cancelled after expiry of six months from the date of this Judgment as contemplated under Section 437-A Cr.P.C. M.O.1-Sample packet of
Ganja, is ordered to be destroyed, subject to the provisions of N.D.P.S
Act, after expiry of appeal time.
Dictated to the Stenographer Grade-I, transcribed by her,
corrected and pronounced by me in the open Court, on this the 26th day of July, 2024.
Sd/- G. Kabardhi
I Additional District and Sessions Judge, Nellore.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Prosecution:
P.W.1: K. Rajagopal Reddy.
P.W.2: O. Gunnaiah.
P.W.3 : P. Ramesh Babu
P.W.4 : A. Ashritha
P.W.5 : K. Sambasiva Rao.
33 NDPS SC 4/2021
P.W.6 : V. Srinivasa Reddy
For Defence: NONE.
DOCUMENTS MARKED
For Prosecution: -
Ex.P1 : Report .
Ex.P2 : Mahazarnama dated 23.10.2019.
Ex.P3 : Scene observation report dated 12.07.2019.
Ex.P4 : Mahazarnama dated 6.2.2020.
Ex.P5 : F.I.R in Cr.No.239/2019 of Nellore Rural P.S.
Ex.P6 : Rough sketch of scene of offence
Ex.P7 : Section alteration memo.
Ex.P8 : A2 additional memo.
Ex.P9 : Chemical analysis report.
Ex.P10 : Memo, mahazar, photos, copy of panchanama
Ex.P11 : Annexure – III
Ex.P12 : 50 Cr.P.C notice.
Ex.P13 : 50 (A) Cr.P.C notice.
Ex.P14 : Arrest and surrender form.
For Defence: NIL
MATERIAL OBJECTS MARKED
M.O.1 : Sample packet of Ganja.
Sd/- G. Kabardhi
I Additional District and Sessions Judge, Nellore.
Copy submitted to: -
The Registrar (Judicial), High Court of Andhra Pradesh, Amaravathi.
//True copy// 34 NDPS SC 4/2021 35 NDPS SC 4/2021