The High Court of Andhra Pradesh allowed an appeal filed against the judgment by a special judge for NDPS cases in which the learned judge found the accused guilty of the charge under Section 20(b)(ii)(B) read with 8(c) of the Narcotic Drugs and Psychotropic Substance Act, 1985 and convicted them. The court ruled in favour of the accused due to doubts raised by false allegations and procedural lapses by the Excise police, including non-compliance with Section 50 of the NDPS Act and the unexplained abandonment of a mediator by the prosecution.
Brief Facts:
The Prohibition & Excise party proceeded to detect the prohibition and excise offences in a government-rented Jeep and found the accused having polythene gunny bags. When they questioned the accused about the contents, they replied that it contained Ganja but they didn’t reveal the source of Ganja. The Prohibition & Excise Inspector asked the passengers present to act as mediators to which they agreed. Then the inspector asked the accused whether they wanted any other Gazetted Officer or Magistrate to search their polythene gunny bags, to which they replied that they may be searched before him because he is also a Gazetted Officer. The inspector found Ganja in the gunny bags, then they sealed the bags and obtained the signatures of the mediators on the mediatornama. The case was registered and an investigation was initiated. After filing of chargesheet, the learned special judge took cognizance of the case under Section 20(b)(ii)(B) read with 8(c) of the N.D.P.S Act. After the trial, the judge held both the accused convicted and sentenced them. Thus, the present appeal is filed challenging the judgment.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the petitioner contended that the narrative presented by the excise police in the Chargesheet is erroneous and questionable. It is further contended that while the prosecution would demonstrate that the two people who mediated the mahazarnama were selected at random from the scene of the incident, the cross-examination would show that one of the mediators was the driver of the Excise Jeep carrying the Excise squad, who became hostile, and the other was not questioned without any reason. It is also contended that the accused were illiterate and rustic villagers and were not capable of giving any reply like giving consent for search before excise officials.
Contentions of the Respondent:
The learned counsel appearing on behalf of the Respondent contended that though one of the prosecution witnesses turned hostile to the case of the prosecution but he had no necessity to sign mahazarnama if he really did not witness the events. It is also argued that there is consistency between the evidence of prosecution witnesses and samples of Ganja according to the chemical analyst opinion. It is further argued that excise police have no reason to implicate the accused falsely.
Observations of the court:
The court observed that in the ordinary course when a witness turned hostile either deviating from Section 161 of Cr.P.C. statement or from mahazarnama, the Court cannot come to a conclusion that the investigation is false or the contents of mahazarnama are false, but, here is a case that excise police alleged that mediators were passengers and it proved to be false for the reason that one of the mediator was no other than the driver of Jeep of Excise Squad, who participated in the raid and this throws any amount of doubt about the bonafide of the case of the prosecution. The court noted that the Excise police officials in the raid must blame themselves for this sordid state of affairs.
The court further observed that unless there is a personal search of the accused in view of Section 50 of the NDPS Act, there is no need or necessity to comply with Section 50 of the Act by taking the accused to the Gazetted Officer and here, the Excise police claimed to have complied even Section 50 of the Act but the Gazetted Officer as contemplated under Section 50 of the Act should be independent one unconcerned with the investigation and the claim that he introduced himself as a Gazetted Officer before accused and gave option to be searched before another gazetted officer for which the accused gave consent to be searched before him is not at all bonafide and is viewed with an eye of suspicion.
The court held that the learned special judge did not notice the fact that the mediator in this case was a stock mediator who was given up by the prosecution without furnishing any reason and the court extended the benefit of the doubt against the accused and the evidence on record is not at all convincing so as to sustain a conviction against the accused.
The decision of the Court:
The court allowed the petition setting aside the impugned judgment.
Case Title: Shaik Meerabi vs. State of Andhra Pradesh
Coram: Hon’ble Mr. Justice A.V. Ravindra Babu
Case No.: Criminal Appeal No.56 OF 2009
Advocate for the Petitioner: Mr. Siva Sankara Rao Borra
Advocate for the Respondent: Mr. Y. Jagadeeswara Rao
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