Telangana High Court
Chamakuri Madhavi vs The State Of Telangana on 11 September, 2023
Bench: K.Surender
1
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Appeal No.32 OF 2022
Between:
Chamakuri Madhavi & other ... Appellants/A1 and A2
And
The State of Telangana,
Rep. by its Public Prosecutor ,
High Court for the State of Telangana,
Hyderabad.
...Complainant/Respondent
DATE OF JUDGMENT PRONOUNCED : 11.09.2023
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to see the Yes/No
Judgments?
2 Whether the copies of judgment may
be marked to Law Reporters/Journals Yes/No
3 Whether Their Ladyship/Lordship
Wish to see their fair copy of the
Judgment? Yes/No
__________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K. SURENDER
+ CRL.A. No. 32 of 2022
% Dated 11.09.2023
# Chamakuri Madhavi & other ... Appellants/A1 and A2
And
$ The State of Telangana,
Rep. by its Public Prosecutor ,
High Court for the State of Telangana,
Hyderabad.
... Complainant/Respondent
! Counsel for the Petitioner: Sri V. Brahamaiah Chowdary
^ Counsel for the Respondents: Sri Public Prosecutor
>HEAD NOTE:
? Cases referred
1. (2016) 3 SCC 379
2. 2023 Law Suit (SC) 695
3
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No. 32 OF 2022
JUDGMENT:
This appeal is filed by the appellants/A1 and A2,
questioning the conviction recorded by the Special Sessions
Judge for Trial of Cases under the Narcotic Drugs and
Psychotropic Substances Act, 1985-cum-I Additional Sessions
Judge, Khammam, in SC.NDPS.No.8 of 2019, dated 17.01.2022,
convicting the appellants to undergo Rigorous Imprisonment for
a period of ten years each and to pay fine of Rs.1 lakh each for
the offence under Section 20(b) r/w.8(c) of the Narcotic Drugs
and Psychotropic Substances Act, 1985.
2. Heard. Perused the record.
3. The appellants/A1 & A2 were convicted for the reason of
being in possession of 3.5 Kgs. of ganja.
4. Briefly, the case of the prosecution is that on 21.08.2018
when the Sub-Inspector of Police, Khammam-I Town along with
his staff went to platform No.1 of RTC Bus stand, Khammam,
found the accused in suspicious circumstances. According to
the prosecution, they have seized 3.5 Kgs. of ganja. Having
followed the procedure, they were arrested and sent to remand.
Having concluded the investigation, charge sheet was filed
against the appellants for the offences punishable under Section
20(b) r/w.8(c) of the Narcotic Drugs and Psychotropic
Substances Act, 1985.
5. Learned Counsel appearing for the appellants would
submit that the entire prosecution is bad in law for the reason of
the Police not following the directions of the Honourable
Supreme Court in Union of India v. Mohanlal 1 . By virtue of
the said Judgment of the Honourable Supreme Court, sampling
had to be done in the presence of Magistrate. However, in the
present case, samples were drawn by the Investigating Officer-
PW6.
6. PW3 is the mediator and PW5 is the Tahasildar who stated
that sampling was done by the Police. PW6-Inspector of Police
stated that the samples were sent to FSL by him.
7. Learned Assistant Public Prosecutor does not dispute the
fact that the samples were taken by the Police and sent for FSL
(2016) 3 SCC 379
examination. However, the procedure prescribed has been
followed for which reason conviction cannot be set aside.
8. The Honourable Supreme Court in Mohanlal's case
(supra) held as follows;
"15. It is manifest from Section 52-A(2) include (supra) that upon
seizure of the contraband the same has to be forwarded either to
the officer-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.
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-
sections (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."
9. The Honourable Supreme Court in Mangilal v. State of
Mahdya Pradesh 2 and in Crl.A.No.1443 of 2023 (Arising out of
SLP (Crl.) No.1958 of 2023) decided on 09.05.2023 have followed
the law laid down by the Honourable Supreme Court in
Mohanlals' case and for not drawing samples in presence of the
Magistrate, recorded acquittal.
10. In the present case, admittedly, the samples were drawn
by the Police and sent to FSL which is in violation of the
procedure laid down by the Honourable Supreme Court in
Mohanlal's case. In the said circumstances, the case of the
prosecution cannot be relied upon to maintain the conviction.
The case is not free from reasonable doubt and accordingly
benefit has to be extended to the appellant.
11. Accordingly, the Criminal Appeal is allowed and the
conviction recorded by the Special Sessions Judge for Trial of
Cases under the Narcotic Drugs and Psychotropic Substances
2023 Law Suit (SC) 695
Act, 1985-cum-I Additional Sessions Judge, Khammam, in
SC.NDPS.No.8 of 2019, dated 17.01.2022, is hereby set aside.
Miscellaneous applications, if any pending, shall stand
closed.
________________
K.SURENDER,J
Date: 11.03.2023
Note: L.R. copy to be marked.
tk
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No. 32 OF 2002
Dt. 11.09.2023
tk
