Banoth Veeranna and others vs State of Andhra Pradesh

K.Surender, J

This criminal appeal is preferred by the appellants- accused questioning the judgment dated 03.04.2014 passed by the learned Special Sessions Judge for Trial of NDPS Cases (I- Additional Sessions Judge), Khammam, in S.C. No.3 of 2013.

Heard both sides and perused the material available on record.

The brief facts of the prosecution case are that on 14.05.2000, on the instructions of LW 13 C.I. of Police, PW1, along with LWs 2 to 6 who are all constables (none-examined during trial) and the CRPF party (none-examined), conducted vehicle checking duty near Pedda Vaagu Bridge. They intercepted an Innova car and a Tata Indica car coming towards Chinturu. PW1 apprehended three persons from the Indica and three persons in the Innova vehicle and enquired about the contents in the vehicle. No one replied. PW1 checked the vehicles and found that there was ganja. Immediately, he gave in writing under Section 50 of NDPS Act that the possession of ganja is a crime, and whether they want to be interrogated before a Gazetted Officer. PW1 sent a requisition to the Gazetted Officer/PW4 and called two mediators, PWs 3 and 6. PW 4 arrived at the spot; PW1 interrogated and apprehended A1 to A6 in the presence of PWs 3 and 6/mediators, as well as the Gazetted Officer/PW4. A1 to A6 revealed their particulars, and they confessed about the ganja business. PW1 recorded the confessional statements of A1 to A6 separately in the presence of the mediators, Gazetted Officer and seized a total of 270 Kgs of dry ganja which was packed in 9 gunny bags and also seized the Innova car bearing No.AP-36 Y-6403, and the Tata Indica car bearing No.AP-3-S/46 in which 9 bags of ganja were found. PW1 recovered an amount of Rs.2,500/- from the possession of A1, Rs.2,000/- each from the possession of A2 and A3, Rs.1,000/- each from the possession of A4 and A5 and Rs.1,500/-, from the possession of A6. Ganja was weighed and the panchanama was drafted. Samples were drawn from each packet for chemical analysis before the mediators and FRO, Lakkavaram. Later PW1, forwarded the accused, panchanama, and seized property to PW5/ASI, P.S. Mothugudem, and PW1 also lodged a complaint. Basing on which a case in Cr.No.11 of 2010 was registered under Section 8(C) read with Section 20 (ii) (b) of NDPS Act and issued FIR. During the course of the investigation, inspector LW13 (not examined) recorded statements of LWs 2 to 6 and PW2. LW13 visited the scene of offence and also effected the arrest of A1 to A6 and sent the samples to the Regional Prohibition and Excise Laboratory, Warangal, through ASP Bhadrachalam for chemical examination and report. FSL opined that the samples were “Ganja Positive”.

Having concluded the investigation, charge sheet was laid against A1 to A6. The learned Sessions Judge, having framed charges, examined prosecution witnesses PWs 1 to 6 and marked Exs.P1 to P23. MO1 Ganja and MO2 cash of Rs.10,000/- were also marked.

PW1 is the Sub-Inspector of Police who seized the contra band handed it over to SHO, Ramesh Babu- PW5 along with accused and PW5 registered crime. PWs 2, 3 and 6 were independent witnesses who turned hostile. PW4, the sub- Divisional Forest Officer stated that 9 gunny bags of ganja were seized and samples were collected. PW6, the Forest Guard, turned hostile to prosecution case.

During the course of trial, the investigation officer LW13 was not examined, nor was the alleged FSL report brought on record which allegedly reflects that the contraband seized from the appellants-accused was ganja.

In the absence of prosecution examining the person who sent the samples to FSL or the person who examined the said samples and giving FSL report, the question of determining that the seized contraband as ganja, does not arise. It is the duty of the prosecution to prove seizure, consequent sampling and that the samples were sent to the Regional Prohibition and Excise Laboratory, Warangal, through ASP Bhadrachalam for chemical examination. The Expert LW11 who examined the samples and issued a report stating that the samples were ganja was not produced before the Court.

Learned Sessions Judge found that though the FSL report was not filed to show that it was ganja and though the investigating officer was not examined, a presumption can be drawn under Section 54 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

The presumption under Section 54 can only be drawn when it is established by the prosecution that any contraband seized is NDPS substance. If it is proved that any narcotic drug is in the possession of an accused, a presumption can be drawn to the extent of there being a conscious possession on the part of the accused. If the prosecution has not filed any proof that the seized substance was ganja, the question of drawing presumption does not arise.

In view of the above discussion, the appellant succeeds. Accordingly, the appeal is allowed.

As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.