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Synopsis

The Supreme Court has on March 1, 2024 acquitted three men of the charges of carrying over 80 kgs of narcotics substance ganja, declaring that the conviction recorded by the trial court and upheld by the high court was illegal on the face of the record and suffered from the highest degree of perversity.

A bench of Justices B R Gavai and Sandeep Mehta acquitted S A Shafiullah, Mohd Khalid and Md Afsar, who were sentenced to 10 years imprisonment after being held guilty under various provisions of the NDPS Act.

The court said that the prosecution had miserably failed to prove the charges against the accused and the evidence of the police witnesses was full of contradictions and is thoroughly unconvincing. 

"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," the bench said.

On credible information, two accused Md Ishaq Ansari, since expired and Shafiullah were apprehended in a vehicle on May 8, 2009 allegedly in possession of 80 kgs of ganja. Two other accused were arrested on the basis of confessional statements.

Examining the evidence available on record, the bench pointed out that prosecution claimed to have recovered the contraband from three bags wherein the ganja as well as green chillies were present.

The court noted the seizure officer made no effort whatsoever to conduct a separate weighing 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, it concluded.

The two independent panch witnesses i.e. Shareef Shah and Mithun Jana who were associated in the recovery proceedings, were not examined in the evidence and no explanation was given by the prosecution as to why they were not examined, it said.

The official who collected the samples from the police station and carried the same to the FSL was not examined at the trial, the court said.

The bench also pointed out that in addition, 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, it said.

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 bench pointed out.

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, it added.

"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," the bench said.

The court also pointed out that 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, there remained only two samples whereas three samples reached the FSL. This discrepancy completely shatters the prosecution case," the bench said.

The court further pointed out admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer for preparing an inventory and obtaining samples in presence of the jurisdictional Magistrate. 

"In this view of the matter, the FSL report is nothing but a waste paper and cannot be read in evidence," the bench said.

The court further said that 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, which is hit by Section 25 of the Evidence Act.

The court ordered the appellants who had been in custody to be released forthwith.

Case Title: Mohammed Khalid And Another vs. the State of Telangana