TaxTMI 
TaxTMI 
TaxTMI 
2024 (3) TMI 120
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.... the pendency of the appeal before the High Court, A-1 (Mohd. Ishaq Ansari) expired and, therefore, the proceedings qua him stood abated before the High Court. 4. For the sake of convenience, the accused will be referred to as A-1(Md. Ishaq Ansari)(expired), A-2(S.A. Shafiullah), A-3(Mohd. Khalid) and A-4(Md. Afsar). Brief Facts : 5. Mr. M. Srinivasa Rao, Inspector of Police(PW-1), West Zone Task Force (hereinafter being referred to as 'Inspector PW-1') claims to have received credible information on 8th May, 2009 regarding transportation of ganja by two persons from Sangareddy to Hyderabad in a 'Toyota Qualis' vehicle. PW-1 apprised his superior officers about such source information and after obtaining permission, secured the presence of two panchas, namely, Shareef Shah and Mithun Jana, to associate as panchas and proceeded to the spot along with his team. The Inspector PW- 1 and the team members intercepted a Toyota Qualis vehicle bearing registration no. AP 09 AL 6323 near Galaxy Theatre at 15:00 hours. A-1 and A-2 were allegedly found present in the vehicle. The Inspector PW-1 served them a notice under Section 50 of the NDPS Act. On the request of the accused, a Gazetted....
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....re of PW2 on panchnama of A3 Exhibit P6 Signature of PW2 on panchnama of A4 Exhibit P7 Signature of PW3 on panchnama of A3 Exhibit P8 Signature of PW3 on panchnama of A4 Exhibit P9 Notice to accused No. 1 and 2 Exhibit P10 First Information Report Exhibit P11 FSL Report Exhibit P12 Seizure panchnama of A3 Exhibit P13 Seizure panchnama of A4 10. The accused, upon being questioned under Section 313 of Code of Criminal Procedure, 1973(hereinafter being referred to as 'CrPC') denied the prosecution allegations but chose not to lead any evidence in defence. The trial Court proceeded to convict and sentence the accused in the above terms by the judgment dated 30th May, 2011. 11. Being aggrieved by their conviction and the sentence awarded by the trial Court, the accused preferred an appeal under Section 374(2) CrPC in the High Court for the State of Telangana at Hyderabad which stood rejected vide the judgment dated 10th November, 2022. 12. A-3 and A-4 have preferred Criminal Appeal No. 1610 of 2023 and A-2 has preferred Criminal appeal No. 1611 of 2023 for assailing the impugned judgment dated 10th November, 2022 of High Court whereby the conviction recorded and sente....
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.... in the witness box, he produced seven packets wherein the contraband was packed. These packets were not having any seals or identifying marks, i.e., signature of the accused and the panchas. Thus, it is apparent that the original muddamal seized at the spot was never produced and exhibited in the Court; (vii) That Sub-Inspector LW-10 who allegedly handed over the sample packets to Investigating Officer PW-5 was not examined in evidence. Furthermore, the carrier Constable who transmitted the samples to the FSL was also not examined by the prosecution; (viii) No document pertaining to deposit of the samples at the Police Station and the transmission thereof to the FSL was exhibited on record. The samples were forwarded to the FSL after a gross delay of more than two months and hence, the FSL report cannot be read in evidence because the required link evidence is missing. 14. Learned counsel representing A-3 and A-4 urged that these accused were not found present at the spot at the time of seizure. They were arrested on 30th May, 2009 merely on the basis of the interrogation notes of A-1 and A-2 and were charged for offence under Section 8 read with Section 20(b)(ii)(c) of NDPS ....
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....tance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.-For the purposes of this section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public. 49. Power to stop and search conveyance.-Any officer authorised under Section 42, may, if he has reason to suspect that any animal or conveyance is, or is about to be, used for the transport of any narcotic drug or psychotropic substance [or controlled substance], in respect of which he suspects that any provision of this Act has been, or is being, or is about to be, contravened at any time, stop such animal or conveyance, or, in the case of an aircraft, compel it to land and- (a) rummage and search the conveyance or part thereof; (b) examine and search any goods on the animal or in the conveyance; (c) if it becomes necessary to stop the animal or the conveyance, he may use all lawful means for stopping it, and where such means fail, the animal or the conveyance may be fired upon." 18. We now proceed to some important excerpts from the prosecution evidence:- ....
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....s already marked as M.O.1." "Three samples of Ganja have been taken by LW 10 and handed over the samples to me. We have forwarded the three samples to FSL through A.C.P., and submitted FSL report Ex. P.11." "The samples were taken on 8.5.2009 and they were forwarded to FSL on 7.7.2009 i.e. after two months of taking of samples. The samples were not deposited in the court." "I did not file any document to show that where the property was kept in Maalkhana. I did not produce any Maalkhana register in this case. The property was sent to FSL after two months of its seizure. The FSL report, does not disclose about the panch chits and seals and quantity of samples. The property deposited in court is not having any official seals." "I did not report to the court till today that the ganja was getting dried up and becoming dust, I converted them from three bundles to 7 bags for safe custody." 19. A perusal of the evidence of the Seizure Officer (Inspector PW- 1) and the confession-cum-seizure panchnama (Exhibit P-3) would reveal that the prosecution claims to have recovered the contraband from three bags wherein the ganja as well as green chillies were present. Seizure Officer....
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....hat the property was kept in malkhana. The malkhana register was not produced in the Court. The FSL report (Exhibit P-11) does not disclose about the panch chits and seals and signature of the accused on samples. The property deposited in the Court(muddamal) was not having any official seals. The witness also admitted that he did not take any permission from the Court for changing the original three packets of muddamal ganja to seven new bags for safe keeping. These glaring loopholes in the prosecution case give rise to an inescapable inference that the prosecution has miserably failed to prove the required link evidence to satisfy the Court regarding the safe custody of the sample packets from the time of the seizure till the same reached the FSL. Rather, the very possibility of three samples being sent to FSL is negated by the fact that the Seizure Officer handed over one of the three collected samples to the accused. Thus, their remained only two samples whereas three samples reached the FSL. This discrepancy completely shatters the prosecution case. 22. Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer PW-5 for preparing ....