Telangana High Court
Durgamcheru Shankar Goud, vs The State Of Ap Rep By Its Pp Hyd., on 22 January, 2025
1
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.574 OF 2012
JUDGMENT:
The present appeal is filed by the appellant/accused No.1
aggrieved by the judgment and conviction dated 20.06.2012 in
NDPS S.C.No.36 of 2011, on the file of I Additional Sessions
Judge, Medak, Sangareddy.
2. Heard learned counsel for the appellant/accused No.1 and
Sri M.Vivekananda Reddy, learned Assistant Public Prosecutor for
State.
3. The appellant was convicted for the offence under Section 8
(c) read with 22 of NDPS Act. Though accused Nos.1 and 2 were
prosecuted, the trial Court found accused No.2 not guilty.
4. The case of the prosecution is that on 17.03.2010 at about
12.45 pm, on reliable information about illegal possession and
selling of raw diazepam and alprazolam at the kirana shop of A1
situated at Shastri Road, Sadasivpet, the Prohibition and Excise
Inspector, Sangareddy along with ESTF personnel and mediators,
conducted raid on the kirana shop of A1. A1 was found at the
shop and was served search memo. During the search, the
Investigating Officer/PW.2 found (6) polythene bags containing 19
kgs., yellowish fine powder of diazepam, (4) kgs of alprazolam, (4)
packets of ammonium powder, each 25 kgs, in the south-west
corner of the second room of the kirana shop. A1 failed to produce
any valid licence or permit to possess and sell the said
contraband. On enquiry, A.1 disclosed the name of A.2 as the
person who supplied the said contraband at Rs.1,000/- per kg.,
for mixing in toddy to the needy toddy tappers for adulteration
and that he was selling the same at Rs.1,500/- per kg. The
Investigating Officer/PW.2 had drawn two samples of each powder
duly following the procedure in the presence of mediators PW.1
and another under the cover of panchnama and arrested A1. The
Prohibition and Excise Sub-Inspector/PW.3, Sangareddy
registered a case against A1 and A2 vide COR No.398/2009-10
under Section 8(c) read with Section 22 of NDPS Act, 1985. During
the course of investigation, PW.3 sent one set of samples to the
Government Chemical Examiner, Nizamabad, for analysis through
the Court and after receipt of the chemical examiner's report
opining that the samples were containing alprazolam, diazepam
and ammonium bicarbonate, filed the charge sheet against A1 and
A2.
5. The learned Sessions Judge framed charges against both
accused Nos.1 and 2 for the offence under Section 8 (c) read with
22 of NDPS Act and examined three witnesses. PW.1 who is an
independent witness turned hostile to the prosecution and PWs.2
and 3 are the officials, who went to the scene and issued search
memo. The appellant was found in the kirana shop where PWs.2
and 3 searched the premises. On the basis of confession of
accused No.1, accused No.2 was also arrayed as accused.
6. The learned counsel appearing on behalf of the
appellant/accused No.1 would submit that PW.1 turned hostile to
the prosecution case. As per the record, the samples were drawn
on 07.03.2010. However, the samples were deposited on
06.04.2010 but the said custody of 30 days was not explained by
PW.2 or PW.3. The witnesses PW.2 and PW.3 have admitted that
the signatures were not taken on the seized contraband and also
samples. In the said circumstances, the recovery itself is doubtful.
7. Learned counsel relied on the judgment of this Court in
Criminal Appeal No.1182 of 2012, dated 04.07.2024 and argued
that non-examination of any independent witness and hostility of
PW.1 is fatal to the prosecution case. He also relied on the
judgment of this Court in Criminal Appeal No.3191 of 2023. The
relevant extract is as follows:
"15. In Mohanlal's case, the apex court while
dealing with Section 52A of the NDPS Act clearly laid
down that it is manifest from the said provision that
upon seizure of the contraband, it has to be forwarded
either to the officer-in-charge of the nearest police
station or to the officer empowered under Section 53
who is obliged to prepare an inventory of the seized
contraband and then to make an application to the
Magistrate for the purposes of getting its correctness
certified. It has been further laid down that the
samples drawn in the presence of the Magistrate and
the list thereof on being certified alone would
constitute primary evidence for the purposes of the
trial.
16. In the absence of any material on record to
establish that the samples of the seized contraband
were drawn in the presence of the Magistrate and that
the inventory of the seized contraband was duly
certified by the Magistrate, it is apparent that the said
seized contraband and the samples drawn therefrom
would not be a valid piece of primary evidence in the
trial. Once there is no primary evidence available, the
trial as a whole stands vitiated."
8. Learned counsel finally submits that the sampling was not
correctly done and since it is not in accordance with the procedure
laid down under the NDPS Act, the appellant/accused No.1 is
entitled for acquittal.
9. Learned Assistant Public Prosecutor appearing on behalf of
the respondent would submit that the delay in depositing the
samples has been explained by PW.3 and stated that by oversight
they have deposited the samples before the Magistrate Court and
thereafter, they took the samples and deposited before the Special
Court. In these circumstances, there is no infirmity in the case of
the prosecution and the delay in depositing the samples has been
explained.
10. The sampling was done at the scene, however, the
signatures of the panch witnesses are not present on the samples
as admitted by PW.3. However, PW.3 stated that the signatures
were worn out due to time. The fact remains that the signatures
were not found on the samples and the Court did not observe that
the signatures were worn out.
11. PW.2 admitted that there was no kirana shop number and it
was not noted in the panchnama. Neither photographs were
taken, nor any sketch was prepared. None of the neighbouring
shop owners of the premises were examined. PW.2 further
admitted that no chits were pasted on MO.1 to MO.3 seized
contraband and no seal was affixed on them.
12. The prosecution has the duty to establish the exclusive
possession of the premises, by the appellant from where the
contraband was seized. Though PWs.2 and 3 stated that it was a
kirana shop neither the license is filed nor the owner of the
premises is examined or any photographs taken. The case of the
appellant is one of total denial. There is no proof to show that the
appellant was in fact running the kirana shop and the premises
where the contraband was seized was in the exclusive possession
of the appellant. Further the prosecution has failed to prove that
the contraband was seized at the instance of the appellant and
from the shop which was in his exclusive possession. The samples
were deposited before the Court on 06.04.2010. The custody from
07.03.2010 to 06.04.2020 was not explained by the prosecution
and when the learned counsel for the appellant cross-examined
the witness PW.3, he stated that the property was deposited in the
Magistrate Court and later taken back and deposited before the
Special Court. No documents were filed to show that initially the
property was deposited in the Magistrate Court and further such
deposit was refused by the Magistrate Court or returned. Merely
giving an explanation that the contraband was filed before the
Magistrate Court will not entail the prosecution any benefit, since
the duration of 30 days delay in depositing the contraband is not
explained to the satisfaction of the Court.
13. In view of the said discrepancies which are pointed out in
the above discussion, the conviction imposed against the
appellant/accused No.1 for the offence under Section 8 (c) read
with 22 of NDPS Act, deserves to be set aside.
14. In the result, the Criminal Appeal is allowed. Bail bonds
shall stand discharged. The fine amount paid by the
appellant/accused, if any, shall be returned.
Miscellaneous applications pending, if any, shall stand
closed.
_________________
K.SURENDER, J
Date: 22.01.2025
Pns
