Telangana High Court
Tagre Prem Singh, And 2 Others vs The State Of Ap Rep By Its Pp Hyd., on 10 July, 2024
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1174 OF 2012
JUDGMENT:
1. This Criminal Appeal is filed by the appellants/A2 to A4, aggrieved by the conviction recorded by the Special Judge for Trial of Cases under NDPS Act-cum I Additional Sessions Judge, Adilabad, in NDSC.No.19 of 2011, vide Judgment dated Judgment dated 16.11.2012, for the offences punishable under Section 20(b)(ii)(c) of the NDPS Act, and sentenced to undergo Rigorous Imprisonment for a period of ten years each and to pay a fine of Rs.1 lakh each.
2. Heard learned counsel for the appellants and learned Assistant Public Prosecutor for the respondent-State.
3. Briefly, the case of the prosecution is that A1 (acquitted) supplied contraband which is ganja to A2 to A4/appellants herein. While they were transporting ganja in an Auto Rikshaw, PW1 who was on duty stopped the Auto and found 5 bags of ganja. PW5 who is Tahasildar was called to witness seizure along with PW6 and another. The bags were opened and three samples from each bag were drawn. 2 bags were 20 Kgs; one bag was 15 Kgs.; one bag 10 Kgs; and another bag 5 kgs. In all 70 kgs were found. After 2 samples were drawn from the bags, the appellants were arrested and later produced before the Court below. The samples were sent to chemical examiner who gave opinion that samples contained ganja.
4. The prosecution in all examined PWs.1 to 8 and marked Exs.P1 to P11. The ganja bags were also produced and marked as M.Os.1 to 5. M.O.6 is samples and M.O.7 is Auto rikshaw.
5. The learned Magistrate found that the appellants were transporting ganja which is over and above commercial quantity, accordingly, convicted the accused for a period of 10 years and to pay a fine of Rs.1 lakh each.
6. Learned counsel appearing for appellants would submit that the prosecution has to prove all the links from seizure of the samples till it reaches the chemical analyst. In the absence of such proof, the accused has to be acquitted. In support of the said contention, she relied on the Judgment of Honourable Supreme Court in State of Rajasthan v. Daulat Ram 1.
7. Learned counsel submits that as per Section 52 A (2) of the NDPS Act, the details of inventory have to be submitted to the 1 (1980)3 SCC 303 3 Magistrate and as per Section 52 A (2) (c), samples have to be drawn before a Magistrate. In case of non-compliance of Section 52 A, the accused has to be acquitted. In support of her contention, she relied on the Judgment of Honourable Supreme Court in Yusuf @ Asif v. State 2
8. Learned Counsel also submits that though PWs.1, 2 and 5 claim that they seized 70 Kilos of Ganja, it is not known as to how they arrived at such figures in the charge sheet or in their depositions. There was no evidence as to how the prosecution weighed the sample and there was no statement about carrying of weighing scales. Further, samples that were drawn also were not weighed.
9. She further submits that one of the panch witnesses PW6 does not support the seizure of contraband from the possession of the accused and the other signatory to the panchanama (LW12- Chandu) was not examined. PWs.1 and 2 in their depositions state that they searched and opened the bags and identified them as Ganja even before the Tahasildar visited the spot. PW5-Tahasildar admitted that he signed on the sample labels after seeing the crime number and he also states that he has signed at the place of 2 (2023) SCC Online SC 1328 4 collecting samples. Both these statements are inconsistent and casting serious doubt on the seizure.
10. Learned Counsel submits that as per order Nos.2 and 3 of the Standing Order 1/89, a minimum of 24 grams of Ganja to be drawn from each sample. But, in the present case, for 15 samples, only 100 grams of ganja was drawn and sent for examination, instead of 360 (15 samples x 24 grams) grams. The FSL report also does not state the quantity of each sample. In support the said contention she relied on the Judgment of Noor Aga v. State of Punjab and another 3 wherein the Honourable Supreme Court held that standing orders have to be substantially complied with.
11. She also submits that samples were allegedly collected on 13.05.2011 and were received by the chemical examiner on 26.05.2011, with a delay of 13 days in sending the sample. But, Standing Order 1/89 mandates the samples to be sent within 72 hours from the time of seizure. In support of her contention, she relied on the Judgment of Honourable Supreme Court in Malkaiat Singh alias Kala v. The State of Punjab 4 wherein the Apex Court acquitted the accused when there was a delay of five days in sending the sample for chemical examination. 3 (2008) 16 SCC 417 4 (2008) SCC Online P&H 918 5
12. Learned Counsel further submits that the prosecution failed to produce the property extract register to show as to where the sample was deposited, thereby failed to prove the safe custody of the samples. The witnesses do not state as to where the samples were kept between the date of seizure i.e. 13.05.2011 till the date of receiving by the chemical examiner i.e.26.05.2011. In support of the said contention she relied on the Judgment rendered by the High Court of Jammu and Kashmir in State of J & K v. Sham Lal in Crl.A No.88/2010, wherein the High Court acquitted the accused on the ground that the prosecution failed to prove the safe custody of the samples/contraband.
13. Learned Counsel while arguing that there were material contradictions in the statements of witnesses, submits that PW2 stated that the punch witnesses (PW6 and LW12) were available at the office of Tahasildar-PW5, whereas PW5-Tahasildar states that the Panch witnesses were not at his office and they have secured them on their way to the scene. PW5-Tahasildar states that he received requisition from PW2 at 3.00 p.m. at his office and that he reached the spot by 4.30 p.m., whereas, PW2 states that he reached the office of PW5 by 4.30 p.m. and reached the spot at 5.00 p.m. She further submits that PWs.3 and 4 who are 6 circumstantial witnesses have turned hostile to the prosecution case.
14. Having gone through the record, the sampling was not done in accordance with the Rules. The Hon'ble Supreme Court in the case of Union of India v. Mohanlal ((2016) 3 SCC 379) held that sampling had to be done in the presence of Magistrate. Since there was violation of procedure laid down, the Hon'ble Supreme Court had acquitted the accused. As already stated, following the judgment of the Hon'ble Supreme Court in Mohanlal's case, the appellants are entitled to benefit since sampling was not done in the presence of Magistrate.
15. In the result, the judgment of trial Court in S.C.No.19 of 2011 dated 16.11.2012 is set aside. Since the appellants are on bail, their bail bonds shall stand cancelled.
16. Accordingly, Criminal Appeal is allowed.
As a sequel, miscellaneous applications, if any, pending shall stand closed.
___________________ K.SURENDER, J Date: 10.07.2024 tk/kvs