HON'BLE SMT. JUSTICE M.G. PRIYADARSINI
CRIMINAL APPEAL No. 594 OF 2011
JUDGMENT
This criminal appeal under Section 374(2) of the Cr.P.C. is directed against the impugned judgment dated 30.05.2011 passed by the Metropolitan Sessions Judge, Hyderabad in Sessions Case No. 563 of 2010 by which the appellants, who are accused Nos. 1 to 4, have been convicted for the offence under Section 8(c) read with Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the NDPS Act') and sentenced them to undergo rigorous imprisonment for a period of ten years each and to pay a fine of Rs.1,00,000/- each, in default, to suffer simple imprisonment for a period of six months each. It is reported that during the pendency of the appeal, A.1 died and therefore, the proceedings against him stands abated.
2. The gist of the prosecution case leading to the conviction of the appellants-accused, in brief, is as follows:- On 08.05.2009, on receipt of credible information about transportation of ganja in a Qualis vehicle by two persons from 2 Sangareddy to Hyderabad, P.W.1, the Inspector of Police, West Zone Task Force, after appraising the said information to the superior officer orally and after obtaining permission, secured the presence of mediators i.e., Shareef Shah & Mithun Jana, proceeded to the spot along with his team, intercepted the vehicle i.e., Tayota Qualis bearing No. AP 9AL 6323 at Galaxy Theatre at 15:00 hours, apprehended A.1 & A.2. P.W.1 searched the vehicle in the presence of a Gazetted Officer, P.W.4, served them a notice under Section 50 of the NDPS Act, recorded their confession- cum-seizure panchanama under Ex.P.3 and seized three bundles of ganja, weighing about 80 kgs from the vehicle at the instance of both the accused by affixing panch chits thereon, that were being transported by the accused Nos. 1 & 2 under the guise of chilli bags. A.1 disclosed his profession as gym trainer and he took the assistance of his friend, A.2, Police Constable, who gave the vehicle on hire basis and rendered service as driver for transporting the ganja with the assistance of his other friends, A.3 & A.4. P.W.1 has collected three samples weighing about 50 grams each, and had given one sample to the accused under acknowledgement. After completing the necessary formalities, P.W.1 has lodged Ex.P. 2 complaint which was registered as Crime No. 181 of 2009 and handed over the accused Nos.1 & 2 to the Sub-Inspector of Police, Golkonda Police Station, L.W.10 3 along with samples. The samples were sent for forensic analysis and A.1 and A.2 were remanded to judicial custody. During the course of further investigation, on 30.05.2008, at about 08:00 hours, P.W.5, investigating officer, along with his staff, apprehended A.3 & A.4, in the presence of mediators, P.Ws.2 & 3, seized two cell phones from the possession of A.3 & A.4, recorded their confession-cum-seizure panchanama under Exs. P.12 & P.13, effected their arrest following due formalities and sent them to judicial remand. After receipt of forensic analysis report, Ex.P.11, in which, seized substance was found to be ganja, and after completion of investigation, P.W.5, laid the charge sheet against the accused for the offence under Section 8(c) read with Section 20(b)(ii) of the NDPS Act before the Special Court. The appellants-accused adjured the guilt and entered into defence.
3. In order to bring home the offence, the prosecution examined as many as five witnesses and exhibited 13 documents, Exs.P.1 to P.13 in support of its case apart from exhibiting M.Os.1 to 3. On behalf of the defence, none of the witnesses were examined and no documents were marked. The trial Court after analyzing the oral and documentary evidence, by 4 the impugned judgment, convicted and sentenced all the appellants as aforementioned.
4. Heard Sri C. Nageswar Rao, learned Senior Counsel appearing on behalf of Ms. K. Aruna, learned counsel for A.2, Dr. J. Vijayalaxmi, learned counsel for A.3, Sri Brahmadandi Ramesh, learned counsel for A.4 and the learned Public Prosecutor for the State. Perused the material available on record.
5. The main contention of the learned Senior Counsel for the appellant-A.2 is that though the alleged scene of offence is situated in a busy locality, it is not difficult to secure two panch witnesses from that locality. However, the panch witnesses secured in this case i.e., Shareef Shah & Mithun Jana, are not the residents of that locality and under that guise, the police have filed a report stating that their whereabouts are not traceable and therefore, the seizure effected in this case is to be disbelieved. There remains the confessional statement made by A.2 before P.W.1 under Ex.P. 3 in the presence of panch witnesses, who are not available and the gazetted officer, who is examined as P.W. 4. Placing reliance on the decision of the Apex 5 Court in Tofan Singh v. State of Tamil Nadu1, the learned Senior Counsel has vehemently contended that the officers invested with powers under Section 53 of the Act are 'police officers' within the meaning of Section 25 of the Evidence Act and the confessional statement made by A.2 before P.W.1 in the presence of P.W.4, who are police officers, is apparently barred under Section 25 of the Evidence Act and therefore, it cannot be taken into account in order to convict A.2 under the Act.
6. The sum and substance of the learned counsel appearing on behalf of A.3 and A.4 is that the independent witnesses, P.Ws.2 & 3 did not support the case of the prosecution in conducting panchanama, marked as Exs.P. 12 & P. 13, in their presence regarding seizure of cell phones from the possession of A.3 & A.4 which is fatal to the case of the prosecution. Admittedly, P.W.1 has not recorded the 'reliable information' and not intimated to the superior officials in writing which is clear violation of the mandatory provisions of the NDPS Act.
7. It is further contended by the learned counsel for the appellants that the contraband seized was in three bags and it does not contain any panch chits or official seals to prove its security and that the bags originally seized from the accused 1 AIR 2020 SC 5592 6 were three in number, but the bags produced in the court were seven in number and therefore, the property deposited in the court is not the property which was seized by the police and thus, the prosecution has not followed the mandatory provisions of Sections 52, 52-A and 55 of the NDPS Act, and therefore, the appellants are entitled for acquittal. Further, as per the evidence of P.W.5, the property was sent to FSL after two months of its seizure and therefore, the delay in sending the samples to the forensic lab is fatal to the case of the prosecution.
8. Per contra, the learned Public Prosecutor has contended that it is not always necessary that the evidence of the police witnesses have to be corroborated by independent witnesses; that although the panch witnesses for the seizure of contraband from the possession of A.1 and A.2 could not be produced before the Court for want of their whereabouts, since the investigating agency has followed the mandatory procedure and the other police witnesses speak in one voice, including the gazetted officer, P.W.4, as to the recovery of contraband from the possession of A.1 and A.2 from the vehicle, the non-examination of said panch witnesses is not fatal to the prosecution case. It is contended that as there was every possibility of accused persons or the removal/destruction of contraband in case of delay, P.W.1 7 has orally intimated the credible information to the superior officer and therefore, non-intimation of the said information in writing is not mandatory and hence, there is no violation of the provisions of the NDPS Act. Further, there only a delay of two months in sending the samples to the Forensic Lab and the same cannot be said to be fatal to the case of the prosecution. It is lastly contended that the samples duly bares the signatures of panch witnesses and that although three bundles of ganja was seized from the accused, as the said bags were old, the ganja became dry, turned into dust, coming out of from the holes of the bags and therefore, the ganja was shifted to seven new bags from the three old bags, which are marked as M.O.1, as spoken to by P.W.5. In the said circumstances and as the contraband seized is about 80 kgs, which is commercial quantity, the learned Public Prosecutor submits that no mercy can be shown on the accused and prays to dismiss the appeal.
9. In view of the above rival submissions, the point that arises for consideration is:
Whether the prosecution was able to bring home the guilt of the appellants-accused for the offence with which they are charged beyond all reasonable doubt and whether the conviction, 8 as recorded and the sentence awarded by the trial Court is liable to be set aside or modified?
10. P.W.1 speaks about his receiving information about the accused being transporting the ganja from Sangareddy to Hyderabad, his intimating the same to his superior officer and obtaining oral permission to proceed with the case. He further deposed that he secured two panch witnesses, intercepted the Qualis vehicle, apprehended A.1 & A.2, secured the presence of P.W.4, Gazetted Officer, searched the vehicle, seized the contraband weighing about 80 kgs and recorded the confessional statement-cum-seizure panchanama under Ex.P.3. After complying with the required formalities, he lodged Ex.P.2 complaint and surrendered A.1 and A.2, along with the vehicle, before the investigating officer, P.W.5. His evidence reveals that he has followed the mandatory procedure for collection of samples. He specifically stated that he has affixed signed panch chits on the three bundles seized from the Qualis vehicle. Of- course, he has admitted in the cross-examination that the ganja was shifted from three bags to seven bags. However, the shifting of ganja into seven new bags would not affect the case of the prosecution as there is plausible explanation given by the prosecution that as the three bags were in torn condition and the 9 ganja was coming out of the bags, it was shifted into seven new bags. Even otherwise, P.W.1 has specifically stated in the cross- examination that three samples were taken from the three bags, one sample was given to both the accused and two samples were handed over to the police station under seal. The evidence of P.W.4, Inspector of Police (gazetted officer), who was required to the scene of offence, where the accused Nos. 1 and 2 were found with three bundles of ganja and one Qualis, deposed that P.W.1 has seized three ganja bundles weighing 80 kgs from the possession of accused Nos. 1 & 2 and collected samples of 50 grams from each bundle. The investigating officer, P.W.5 deposed that originally three bundles of ganja was seized from the accused, that the contraband was transferred into seven new bags from the three old bags, which are marked as M.O.1. He categorically asserted before the Court that the samples have been forwarded to the FSL through ACP, and the FSL report is marked as Ex.P.11, in which it is stated that items 1 to 3 are cannabinol, an active constituent of well-grown cannabis plant commonly known as ganja.
11. There is no dispute as to the proposition laid down by the Apex Court in Tofan Singh (supra) on which much reliance has been placed by the learned Senior Counsel appearing on behalf of 10 A.2. However, the said decision does not come to the rescue of A.2 for the reason that the case of the prosecution is not rested on the sole confessional statement of A.2, but the prosecution proved beyond any reasonable doubt about the seizure of contraband from the possession of A.1 & A.2 in the presence of panch witnesses, through the evidence of P.Ws.1, 4 and 5. In these circumstances, even non-examination of panch witnesses i.e., Shareef Shah & Mithun Jana, before the Court by the prosecution for want of their whereabouts, assumes no importance. It is to be observed that once it is established that the contraband was recovered from the accused's possession, Section 54 of the NDPS Act, raises presumption and burden shifts on accused to explain as to how he/she came into possession of contraband. Apparently, the said presumption has not been rebutted by the defence in this case though the prosecution has clinchingly established that the contraband was seized from their possession. Coming to the case of A.3 & A.4, it is, no doubt, true that the independent panch witnesses to the seizure of cell phones from A.3 & A.4 have turned hostile as they did not support the case of the prosecution. The learned counsel for A.4 has relied on the decision of the Apex Court in Praveen @ Sonu v. State of Haryana2 in support of his contention that in 2 AIR 2022 SC 270 11 the absence of any other corroborative evidence, except alleged confessional statement of co-accused, conviction cannot be maintained. Though P.Ws.2 & 3 turned hostile, still there is no convincing explanation from P.Ws.2 and 3 as to how their signatures appear on Exs.P.5, P.6, P.7 & P.8. Even there is no theory or explanation by A.3 and A.4 as to why the Police would implicate them in the case falsely or the Police have any animosity against them. It is to be noted that the independent witnesses turning hostile need not necessarily result in the acquittal of the accused, when the mandatory procedure is followed and the other police witnesses speak in one voice as held in Rizwan Khan v. State of Chhattisgarh3. Further, if independent witnesses come up with a story which creates a gaping hole in the prosecution theory, about the very search and seizure, then the case of the prosecution collapses like a pack of cards. However, as observed above, since the theory of the prosecution is convincing and the testimony of the official witnesses notably trustworthy, the Court can turn a Nelson's eye to the independent witnesses turning hostile.
12. The other contention of the learned counsel for the appellants is that P.W.1 did not reduce the credible information 3 (2020) 9 SCC 627 12 into writing and informed to his superior officer, and therefore, the police have violated the provisions of the NDPS Act. Merely because non-recording of reliable information and non-intimation thereof to the superior officer cannot be said to be violation of the provisions of the NDPS Act. If any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non- sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42 of the NDPS Act. Although the learned counsel for the appellants contended that the total weigh of the ganja bundles, as mentioned in panchanama includes the weight of chillies, the said contention cannot be accepted for the reason that in the cross-examination P.W. 1 specifically stated that he has weighed the ganja only and its weight was 80 kgs. Therefore, viewing from any angle, the contentions put forth on behalf of the appellants/accused Nos. 2 to 4 are totally devoid of merits. The trial Court after considering the evidence adduced on either side, has rightly found the accused guilty under section mentioned in the charge and in view of the discussion made earlier, this Court neither found any illegality nor infirmity in the conviction and sentence passed by the trial Court and altogether the present Criminal Appeal deserves to be dismissed. 13
13. In the result, the appeal stands dismissed. The conviction and sentence passed in Sessions Case No.563 of 2010 by the Metropolitan Sessions Judge, Hyderabad are confirmed. The trial Court is directed to take appropriate steps to imprison the accused Nos. 2 to 4 to serve out the remaining period of sentence.
Miscellaneous pending applications, if any, shall stand closed.
_____________________________ JUSTICE M.G.PRIYADARSINI NOVEMBER, 2022 Tsr Note: L.R. Copy to be marked.
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