Allowed

Mohd. Imam, v. the State of Ap Rep by Its Pp Hyd.

Telangana HC15 Jun 2023CRLA/1158/2010

Case brief

AI extract

What is this about?

High Court allowed criminal appeal and acquitted the appellant convicted under NDPS Act. The Court set aside conviction due to failure to prove exclusive possession of the seized premises and admissibility of confession made to Excise Inspectors.

What did the court decide?

Criminal appeal allowed, conviction set aside, appellant acquitted, bail bonds cancelled.

Mohd. Imam, Vs the State of Ap Rep by Its Pp Hyd. — Narcotics (NDPS) | Telangana HC (2023)

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NOTE : The Petitioner/^{Accusedwasdirectedto be releasedon bail by the} order of the High^{Court dated05 10.2010in Crl.AM.P.No'1833of 2010in} Crl.R.C No. 1 158 oI 2O1O

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IN THE HIGH COURT FOR THE STATE^{OF TELANGANA} AT HYDERABAD

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THURSDAY, THE FIFTEENTH DAY OF^JUNE TWO THOUSAND AND TWENTY^THREE

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PRESENT

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THE HONOURABLE SRI JUSTICE^K.SURENDER

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CRIMINAL APPEAL NO: 1158 OF²⁰¹⁰

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Appeal filed under Section 374(2)^{ot Cr.P.C. aggrievedby the Judgment} sentence and Conviction dated 30.09.2010^{passedin N.D.P.S.S.C No. 9 of} 2009 on the file of the l"tAdditional^{SessionsJudge, Medakat Sangareddy.}

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Between:

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Mohd. lmam, S/o Mohd. Khaleel,^{Age: 28 years, Occ: Agriculture, R/o} H.No. 2-34, T.Lingamaplly^{Village,Regode Mandal,Medak District.}

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...APPELLANT/ACCUSED

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AND

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The State of A.P., rep. by its Public^{Prosecutor, High Court of A P., at} Hyderabad.

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. ...RESPONDENT/COMPLAINANT

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l.A. NO: 1 OF 2010(CRLAMP.^{NO: 1833} oF 2010 )

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Petition under Section 389(1) of^{Cr.P.C prayingthat inthe} circumstances stated in the^{affidavitfiled in supportof the petition, the High} Court may be^pleased to^{suspend the sentenceand conviction passedby} the I Add'|. Sessions Judge,^{Medak at Sangareddy,Medak District,vide} N.D.P S.SC.No.9 of 2009, dt.^{30-09-2010 and enlargingthe petitioner on} bail pending disposal of^{the Crl.A.,}

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Counsel for the Appellant : Sri^{PALLE SRIHARINATH}

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Counsel for the Respondent :^{PUBLIC PROSECUTOR}

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The Court delivered the following:^JUDGMENT

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THE HONOURABLE SRI JUSTICE K.SI. REN'DER

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TIIIIMINAL APPEAL No. 1158 qE ,iqlO

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JUDGMENII I

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This^r- riminal Appcal is filed by ttre ap p::llant/ accused aggricved [t., tl-re co;tviction recorded ry tlrc I Adclitional Scssrons .-'ur [ge, Mecl:rl< at Sangareddy, ir N.D F,.S.S.C.No.9 of 2OO9. cl:rtr:d l)0.09.2010, lor the offences punish,tble under Section 8(,:) r,'w.2O(b) oi N.D.P.S.Act, I9;j5 anrl s,entence of Rigorous lu1 rr:sonment for a period of ter year s and a fine of Rs. 1,00,003 r

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Hearcl eilr]ted counsel for the appellan_/ acoused and iearned r\drlit o-ral Public Prosecutor for res.rondt:rrt State.

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It is thr^(tase of lhe prosecution tha: pWr;.1] and 4 u.ho were u,orkingl ar; Inspeclors in the prohibition anl Ex:ise Office at Andole, .l rgipet, on information that the a,:rpellant was dealing u,ith ganja went to the house of apprglllmt. They informed the q,,pellar-rt that his house can be scarched in the presence of a (]azettecl Officer, but since pW3 ir; a gazetted officer. the eLcr u ied consented lor the searctr r.r itl o._rt any other gazette officr:r ()n that PWs.3 & 4 issued a sear:h rrremo and entered into l ltt' housc and fbund 11 plastic t)€rgs and two

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gunny bags containing galja. It is alleged that the accused confessed that he had cultivated ganja in his^{own agricultura-l} fields and kept the same in order to sell them and gain easy money. Samples were drawn at random from all the bags ol^10O grams each. The bags were sealed under cover of^panchanama and sent for the purpose of examination.

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Having received report that green leaves found in^the house of the accused was ganja, charge sheet was^filed. Thereafter, learned Sessions Judge framed charge^under section 8(c) r/w.20(b) of N.D.P.S.Act,^1985. After^{examining the} witnesses PWs.1 to 4 and marking Exs.Pl to P10 on^{behalf of} the prosecution, found that the appellant was^guilty of^the offence.

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l,earned counsel for the appellant would submit^{that the} learned Sessions Judge has committed^grave error^{in recording} conviction on the basis of the confession^{recordedby PWs.3and} PW4 who are Excise Offrcials, finding that^{they are not Police} Officers. In fact, charge sheet was filed^{under Section 173 of} Cr.P.C. by the Excise Inspector,^{as such it cannotbe said that} Excise Inspectors are not Police Officers.^{Since the convictionis}

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baseci rrr tl-,: confessiori made br.thc appt.llartt r:'rd since pWs.3 attd 4 rrrtt P,l:ce C)fllcers. coni'iction iras lr b,: sl.t aside.

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On lh : other hand iearned Additio tar Fr-rl;lic prosecutor \'ould sullt: ril that it is not in dispute t-ra: [,V, s.ii and 4 are Police Offir: r; and also referred to the Jud11r rcnt in Tofan Singh o. S tate of Tamil Nadu 1 wherein t}.e Honourable Suprerne r:o rrt held that the statement m,rde u n,ler Section 67 of the NDI,S A:t is inadmissible. The learnecl St:r;sions Judge,s finding thral Excise Inspectors 3 and 4 are l1o1 .:,oiice Officers, cannot be h ltl to be correct. [n fact, the ]Ixcis: inspectors are Police Officr-.^-s and an-. statement which is rr arle to them is subject to ar nrissibilitl, under section 24 to 27 ol the Evidence Act.

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7 . LearrLe, I Sessions ..ludge found that sincc the.re was no specific deni rl of the ownership of the house , it cannot be concludcd t1t rt tl-re housc n hich was inspected bi. ttre officials, belongs Lo tl e accused. Further, the learred lii.ssicns Judge found that e en though the fields r.r,here 5;anja v. as cultivated was not ide:n il'.ed, will not ha.e any bearirLg on tlle case since

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11zozt1 + sr:c t

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the ganja which was^{abovethe commercialquantitywas seized} from the possession^{of the accused.}

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The findings of the learned^{SessionsJudge cannot be} accepted for the reason^{of conclusionsbeingdrawn on the basis} of assumptions and not^{on the basis of any evidencethat is} produced by the^{prosecution. The prosecution failedto provide} details about the^{exclusive possessionof the accused ald} ownership of the^{house wherethe ganja was found'It cannot be} assumed that the^{premisesowned by the accused unless} documentary evidence^{is placedor oral evidenceis adduced,} when the accused has^{denied seizure from his premises'Both} PWsl and 2 who^{are independent witnesses to the seizure were} declared hostile^{and did not supportthe prosecution case' The} remaining evidence is^{that ofPWs.3 and 4, the Excise} Inspectors who speak^{about the alleged confessionof the} appellant and seizure '

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g. The Honourable Supreme Court in Tofaa Singh's^case (cited supral held that^{the statementmade underSection 67 of} the NDPS Act is^{inadmissible. Excluding the statementmade by} the accused, the^{evidence left is seizure and panchalama'} Since the prosecution^{has failed to prove beyondreasonable}

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(loubt r:qi r'( ir g the os,ncrship of tltc hollse ."v tcfc the ,Llleged ganja. \,as i: r.'rd, the conviction has to b.: :,ct ,, srde. Fr,rrther, the lcarne<l ie:ssions .Judge. has heavil_v piac,:d ;-,, liance on the statemelrl n': rcle by the accused to comc to :cnclusion of guilt. For t i ,: said reason also the hnd Lngs o I tl1e learned Sessions Jud 3e cannot be upheld

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Acr:ordi rply, the appellant succeeds zrn([ C r mi-ral Appea-l is allowed ;e,ting aside the conviction r-eco-de,1 by the I Adclitionrrl ilessions .judge, Medak i1t Sar Lgaredcl_y, 1n N.D.P.S.S.Cr.) o 9 of 2009, dated 30.09.20tO, .rn,l ,he appellant is acquitted. iiince the appellant is on bail, his ba.: t b,rnds shall stand calc€ ll( d

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Miscella rr,ous applications, if any pcn<ling in this criminal appeal, shall r te-nd closed

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Sd/- C.V. MALII[{:AFIJUNA VARMA J()INT REGISTRAR ,TRUE COPY// (',i, SEC'TION OFFICER

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To,

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1 The^'1't Ad,lit :rral Sessions Judge, Medak at San(laredc y wittr records, if any) 2 One CO to S li^rALLE SRIHARINATH, Advocate^-OPUOI 3 Two CCs tc t re Public Prosecutor, High Court for ihe St:i:; of Telangana at Hyderabac ( )(JTt

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4 The Superrnt rn lent, Central Prison. Cherlapally, flanga R rddy District. 5 Two CD Coo rs

Nih PR 9(

HIGH COURI

DATED:1510e n023

JUDGMENT

CRLA.No.115 3 ot 2010