Allowed

Kurma Kamalakar and 4 Others v. the State of A.P.

Telangana HC27 Jun 2023CRLA/98/2009

Case brief

AI extract

What is this about?

The High Court allowed criminal appeals filed against convictions for possession of narcotics. The court set aside the trial court judgment due to discrepancies in police procedure regarding seizure of contraband and the execution of seizure memos, finding the evidence unreliable.

What did the court decide?

Criminal Appeals allowed; Judgment of Trial Court set aside; Appellants released on bail; Bail bonds cancelled.

Kurma Kamalakar and 4 Others Vs the State of A.P. — Narcotics (NDPS) | Telangana HC (2023)

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t32511

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]N THE HIGH COURT FOR THE STATE OF^TELANGANA AT HYDERABAD

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TUESDAY, THE TWENTY^{SEVENTH DAY OF JUNE} TWO THOUSAND AND TWENTY^THREE

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PRESENT

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THE HON'BLE SRI JUSTICE K.SURENDER

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CRIMINAL APPEAL^{Nos:98 & '123 of 2009}

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Criminal Aooeal No.98 of2009

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Criminal Appeal filed under^{Section374 (2) of Cr'P C against the order} daled:2741-2O09 made in S.C.No.'l^{15 of 2OO4on the file of the Court of the Special} Judge for N.D.P.S. Cases-cum-^{I Additional Sessions Judge, Warangal}

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Between:

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Kurrna Kamalakar, S/o Tirumallu, 39^{years, R/o Narsingapur, Hio Rapakapalli.}

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Gaju Srinivas,, S/o Rajaiah,^{29 yeats, R/o Rapakapalli}

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Sidda Srinivas,, S/o Sambaiah,^{29 years, R/o Rapaka}

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Kosari Ravinder,, S/o Kanakaiah,^{32 years,Rl/o Lingala.}

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Katla Jaipal Reddy, S/o Lingareddy,^{39 years, R/o Pochampally.}

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...Appellants/A2 to 46

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AND

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State of AP rep. by the^{Public Prosecutor,HighCourt, Hyderabad}

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...RespondenUComplainant

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CRLAMP. NO: 125 OF 2009

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Petition under section^{389 (1) of cr.P.c.prayingthat in the circumst€nces} stated in the affidavit filed^{in support of the petition, the High Court maybe} pbased to suspend the execution of^{sentences includingthe paymentof fine} passed by the Court of the Special Judge^{for N D P SCases-cum-lAddl'} bessions iudge, Warangal,^{dated 27 .O1 Og in S C No.115 of 2OO4,andrelease} the petitioners on bail,^{pending Crl.A}

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Counsel for the Appellants:^{SRI P. VAMSHEEDHAR REDDY}

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Counsel for the Respondent:^{PUBLIC PROSECUTOR}

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Criminal ApoeaI No.123 of 2009

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criminal Appeal filed under Section 374 (2) of cr.p.c. against the order dated:27-01-2009 made in s.c.No.1 1s of zoo4 on the fite of the co-urt of the special Judge for N.D.P.S. Cases-cr:m- I Additional Sessions Judge, Warangal.

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Between:

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Dasari Rajesham, S/o Lachaiah, Aged -.52^{years, Occ:Agriculture,R/o Bhivandi,} Thana District, Maharastra Stat6, N/o. Vedhira of Gangadhara Mandal, Karimnagar District.

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...AppeltanUAccused No.l

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AND

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The state of Andhra Pradesh, rep. by its pubric prosecutor, High court of A.p., at Hyderabad.

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... Respondent

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CRLAMP. NO:1 48 0F 2009

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Petition under section 3Bg (i)of cr.p.c. praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased to suspend the sentence of imprisonment made in theludgme nt dt'. 2701-2009 in sc.No.115 of 2oo4 on the fite of the court or speciit .Judge for NDPS Cases-cum-1st Addl. Sessions Judge, Warangal, and releas6 the petitioner on bail, pending disposat of the Crl.A.,

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Counsel for the Appellant: SRI A. PRABHAKAR RAO

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Counsel for the Respondent: PUBLIC PROSECUTOR

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The Court delivered the following: COMMON JUDGMENT

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HON'BLE SRI JUSTICE K.SURENDER

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CRIMINAL APPEAL Nos.98 & L2g OF 2OO9

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COMMON JUDGMENT:

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I. The appellants are convicted for the offence under Section 8(c) read with Section 20 of The Narcotic Drugs and Psychotropic Substances Act, lgg5 (for short the Act) and sentenced to undergo rigorous imprisonment for a period of ten years each and also to pay hne of Rs.1.0O lakh each, in ciefault, to undergo further irnprisonment lor a period of two years vide judgment in S.C.No. 115 of 2OO4, d,ated, 2Z .OL.2OOg passed by the Special Judge for NDpS cases-cum-r Additional Sessions Judge, Warangal. Aggrieved by the same, both the criminal appea_ls are filed by the appellants/A1 to ,46.

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The case of the prosecution is that p.W.2, who is the Sub-lnspector of Police, Regonda along with other staff who are not examined, stopped the jeep bearing No. Ap 7U 1635 at Regonda Bus stop. They for-rnd Lhese appellants and eight gunny bags which containecl the same material. Suspecting that the eight gunny bags conta-ined ganja, p.W.2 secured the

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presence of the witnesses^{I) Ws 4 and 5' The appellantswere} asked whether^{tirey ir-itend '.o be examined before the gazetted} officer and they^{wei-e takclr to IvIROoffice' At the MROoffltce'} each of the^{appellant admil'lcd that the Ganja found in the} jeep belongeci to them and^{they were transporting it to sell at} higher rate.

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After^{the jt:ep rvas stoplled, P'W 2 entertained a doubt} and the^{u,itnesses P.Ws.4:rnd 5 were called to ulitnessthe} proceedings.^{Brrtl'r tl-re medi:rtors P'Ws'4 ald 5 turned hostiie} to the prosccution^{case lix P3 panchanama was conductedat} the bus stand^{and draftcc lrv P'Ws'4 and 5' who deniedits} executicn.^{Ho''ve'''er,as scerl il'om the contents of Ex'P3'there} are no detaiis^{of Lhe accusr:il /appellants, quantitythat was in} the bags and^{to whom the sard bags belong to' Thereafter' the} accused aiong^{with the bag arid panchas were taken to MRO} ofhce. At the^{IviRO's oificc, it isstated by F'W'2 that he} interrogated^{the appeiiants'lhey revealedtheir identity and} informed that^{they were transportingganja in gunny bags} which u,ere in^{the.1eep. Bagsr,.,ere opened and 1'r appellant/Ai}

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pointed out that two gunny bags belong to^{him weighing30} and 25 kgs. Three samples were drawn.^{Similarly,2"d} appellant/A2 pointed out two bags out of remaining^{six and} informed that it belongs to him. 24 kgs of dry^ganjawas lound in each bag. A3/Appettant No.3 informed that a^bag containing 24 kgs was his. Similarly, A4 pointed out^{a bag} containing 11 kgs, A5 pointed out a bag containing 24^kgs, and 46 pointed out a bag a containing 2l kgs of ganja. All^the accused confessed that the bags contained ganja and^they procured it for selling at a higher rate.

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The Mandal Revenue Officer, who was examined as P.W.3 stated that the jeep along with the accused were brought to the ofhce. Accused were produced in his chamber. MRO enquired the identity of the accused and thereafter, Al brought two bags and they were searched and each bag was found to have contained 30 kgs and similar details as given by P.W.2 were given by P.W.3.

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The procedure adopted by the police creates any amount of doubt in the case of the prosecution. The independent

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wltnesses turrred hostilc io lhc prosccution case and denied the execution of Ex.P3 panchanama at lhe hus stand and Exs.P4 to P9 seizure pan<:hanamas. It is not explained by the prosecution as to why nonc ol the other members of the team lead by P.W.2 rve re examined in the Court. Acc:ording to p.W.2, he questioned the accused at the bus stand l>ut no details of accused are given in the panchanama. PW2 interrogated appellants in thc MRO oltl<:e and thcn he came to know that the bags containcd ganj:r. P.W.3/M.R.O states that each of the accused when l;rought to his charnber, had orrried bags into his chamber ancl informed tl-r:rt thc bags belongs to them

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There is a1lv a-mor.lnt of cioubt that is created in the procedure adoptcd bi,' the oolir:e. It is not known as to what was done at thc bus stand s.hen the police had stopped the accused. It is not the case tl'Lat the appellants had informed that the bags belonged to them. Further, the police had failed to produce the jcep in s4ricl-r thc accused were traveling. The owner of the jeep is not examined to state that the jeep was either rentecl or taken b1' thc accused.

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l .l

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To lend credibility to any search and proceedings, the Court must be satisfied that the procedure adopted by the police in seizing any contraband as in the present case was in accordance with the procedure laid down. As already discussed above, all the panchanamas that were drafted were not proved through any independent witnesses. It is not explained as to what necessitated P.W.2 to take them to MRO when it is the casc that none of the accused even wanted to be scarched in lront of MRO. How the accused have claimed the said bags to be theirs is not known. There is a discrepancy as to when the bags were opened and the contraband detected as gan1a. P.W.2 says that three samples were drawn from the bag shown by A 1. There is no evidence regarding the other samples drawn. However, there is one analysis report Ex.P14 reflecting test ol six sarrrples.

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Hostility of independent witnesses cannot be made sole basis for disbelieving the case of tlre police if other evidence is reliable. However, it is not convincing that these accused were in fact apprehended at the br. s stand. Why p.W.2 did not even

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make a mention of details ol accused in EXP3, the first report drawn at bus stand is not cxolained. Indepcndent^witnesses turned hostile llnd no othcl policc officer 1v[s v"rs1s along^with PW2 at the bus stand u,erc cxamined. PW3 MRO stated^that each of the accused carriccl bags into his chamber. I^{do not} hnd any credibility in thc case of thc^{prosecutionfor the} reason of discrepancies rcgarding seizure and^theway proceedings were conductt'cl b,v PW2 and PWll.^{In the said} circumstances. therc is a'rr, :urrount ot doubr,^{regarding thc} scizure of contraband and apprchcnsion cf the^ilccused'

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Accordingli', both thc Criminal Appeais^{a!:e a-llowed} scttins aside the irrdgmerrl o t he trial Court in S.C.No.1I5 of 2004, dated 27.O1 2OO9. Since the appelLants^{are on bail, their} bail bonds shall stand canct,'1lcd. Consequently,^{miscellaneous}

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petitions, if any. pending, shall star-rds^closed.

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sd/-Kb?Sh[Et?+sR clb /TTRUE COPY// SECN6N^OFFICER

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To,

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The Special^{Judge for N'D P'S Cases-cum- I Additional SessionsJudg'} Warangat.^{(with iecordsif anY)}

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Two CCs^{lo the PublicProsecutorHlgh Court for the State of Telanganaat} Hyderabad^(OUT)

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One CC^{to SRI P. VAMSHFEDIIARREDDY'Advocate [OPUC]} 4 Two CD Copies '-t-\ -

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HIGH COURT

DATED:2710612023

COMMON JUDGMENT

CRLA.Nos.98 &^{123 of 2009}

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THE CRIMINAL^APPEALS ARE ALLOWED

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Kurma Kamalakar and 4 Others v. the State of A.P.

Case brief

What is this about?

What did the court decide?

Kurma Kamalakar and 4 Others v. the State of A.P.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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