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
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
(1980)3 SCC 303
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
(2023) SCC Online SC 1328
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.
(2008) 16 SCC 417
(2008) SCC Online P&H 918
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
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
