Mohd. Ishaq Ansari 3 Others vs The State Of A.P.
2022 Latest Caselaw 5739 Tel

         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

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

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

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

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

AIR 2020 SC 5592

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

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,

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

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

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

AIR 2022 SC 270

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

(2020) 9 SCC 627

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. 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.