Paragraph numbers below are the court’s original numbering, recovered from the source text.
18. We now proceed to some important excerpts from the prosecution evidence:- (a) Complaint dated 8th May, 2009(Exhibit P-2) “Then I recorded the confession-cum-seizure panchnama of the accused persons A-1 and seized three bundles containing Ganja in it from their possession. On weighing the three bundles it was found about 80 kgs of Ganja in it. Out of the seized Ganja we have taken three samples and marked as S-1 and S-3 each sample packet containing 50 grams of Ganja and affixed panch chits. Also seized Maroon, colour Qualis vehicle bearing No. AP 09AL 6323 Engine No. 2L9722612, Chassis No. LF50-104863512/01 from the possession of the accused persons. Out of the seized Ganja drawn three samples containing 50 grams marked S-1 to S-3, each packed in polythene covers and attached panch chits to them. The sample is supplied to the accused Mohd Ishaq Ansari and S.A. Ashafiullah.” (b) Exhibit P-11(FSL Report) – “Received one sealed cloth parcel sealed with six seals, which are intact and tallying with the sample seal labelled as 32 “Cr. No. 181/2009” containing a cardboard box containing three closed polythene packets each labelled as “S-1, S-2 & S-3” respectively described below through Sri K. Narsimulu, PC 7770 on 14/07/2009.” (C) PW-1 “I collected three samples weighing about 50 gms each and given one sample to the accused under proper acknowledgement.” “M.O.I is the ganja packed in seven bags.” “There are no panch chits right now on M.O.I bags.” “It is true that the bags, deposited before the court are not having, seals. I, have weighed the Ganja only and it is weighing 80 Kgs, but I have not weighed the chillies. The total weight of the Ganja bundles as mentioned in the panchnama includes the weight, of chillies. I have not mentioned about sealing of samples in my panchnama. I have not mentioned in panchnama in what containers. I have taken, the samples.” “As per the panchnama one sample was given to the accused. I have taken 3 samples and out of them I have given one sample to both the accused and two samples I handed over in police station.” (d) PW-4 “PW1 seized 3 ganja bundles weighing around 80 kgs and collected samples of 50 grams from the bundles.” (e) PW-5 “Originally three bundles of ganja was seized from the accused and as the Ganja was becoming dry and turning into dust, and due to the holes of the bags it is coming out, and therefore we transferred the Ganja into 7 new bags, which was 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.” [2024] 3 S.C.R. Mohammed Khalid and Another v. The State of Telangana “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(Inspector PW-1) made no effort whatsoever to conduct a separate weighment of the contraband by segregating the chillies. Rather, the panchnama is totally silent about presence of chillies with the bundles of ganja. Thus, it cannot be said with any degree of certainty that the recovered ganja actually weighed 80 kgs. Seizure Officer(Inspector PW-1) also stated that he collected three samples of ganja at the spot and handed over one sample to accused. If this was true, apparently only two sample packets remained for being sent to the FSL. Contrary to the evidence of PW-1, PW-5 stated that three samples of ganja were taken by LW-10 who handed the same over to him. Thereafter, these samples were forwarded to the FSL through the ACP and a FSL report (Exhibit P-11) was received. When PW-5 appeared for deposition, he produced the muddamal ganja in the Court and it was seen that the same was packed in seven new bags as against the three bags referred to in the seizure memo (Exhibit P-3). Neither any proceedings were conducted nor any memo was prepared by the police officers for repacking the seized ganja bundles in new packaging.
20. The two independent panch witnesses i.e. Shareef Shah and Mithun Jana who were associated in the recovery proceedings, were 34 not examined in evidence and no explanation was given by the prosecution as to why they were not being examined.
21. Sub-Inspector LW-10, who prepared three samples of ganja, as per the testimony of PW-5, was not examined in evidence. In addition thereto, the prosecution neither examined any witness nor produced any document to satisfy the Court regarding safe keeping of the samples right from the time of the seizure till the same reached the FSL. The official who collected the samples from the police station and carried the same to the FSL was not examined at the trial. From the quoted portion of the evidence of Seizure Officer(Inspector PW-1), it is clear as day light that he handed over one of the three samples to the accused. The witness also admitted that he did not mention about sealing of the samples in the panchnama. Contrary to the evidence of PW-1, PW-5 stated that three samples of ganja were taken out by Sub-Inspector LW-10 and were handed over to the witness who forwarded the same to the ACP for sending it to FSL. In cross-examination, the witness admitted that he did not file any document to show that 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 an inventory and obtaining samples in presence of the jurisdictional Magistrate. In this view of the matter, the FSL report(Exhibit P-11) is nothing but a waste paper and cannot be read in evidence. The [2024] 3 S.C.R. Mohammed Khalid and Another v. The State of Telangana accused A-3 and A-4 were not arrested at the spot. The offence under Section 20(b)(ii)(c) deals with production, manufacture, possession, sale, purchase, transport, import or export of cannabis. It is not the case of the prosecution that the accused A-3 and A-4 were found in possession of ganja. The highest case of the prosecution which too is not substantiated by any admissible or tangible evidence is that these two accused had conspired sale/purchase of ganja with A-1 and A-2. The entire case of the prosecution as against these two accused is based on the interrogation notes of A-1 and A-2.
23. It is trite that confession of an accused recorded by a Police Officer is not admissible in evidence as the same is hit by Section 25 of the Evidence Act. Neither the trial Court nor the High Court adverted to this fatal flaw in the prosecution case and proceeded to convict A-3 and A-4 in a sheerly mechanical manner without there being on iota of evidence on record of the case so as to hold them guilty.
24. As a consequence of the above discussion, we are of the firm opinion that the prosecution has miserably failed to prove the charges against the accused. The evidence of the police witnesses is full of contradictions and is thoroughly unconvincing. The conviction of the accused appellants as recorded by the trial Court and affirmed by the High Court is illegal on the face of record and suffers from highest degree of perversity.
25. Resultantly, the judgment dated 10th November, 2022 passed by the High Court affirming the judgment of the trial Court convicting and sentencing the accused appellants for the charge under Section 8(c) read with 20(b)(ii)(c) of the NDPS Act is hereby quashed and set aside. The appellants are acquitted of all the charges. They are in custody and shall be released forthwith, if not wanted in any other case.
26. The appeals are accordingly allowed.
27. Pending application(s), if any, shall stand disposed of. Headnotes prepared by: Ankit Gyan Result of the case: Appeals allowed.