FSL report is nothing but a waste paper when no proceedings u/s 52A of NDPS Act are undertaken by IO for preparing inventory & obtaining samples in presence of Magistrate: Apex Court
Justices B.R. Gavai & Sandeep Mehta [01-03-2024]

Read Order: MOHAMMED KHALID AND ANOTHER v. THE STATE OF TELANGANA [SC- CRIMINAL APPEAL No.1610 OF 2023]

Tulip Kanth

New Delhi, March 4, 2024: The Supreme Court has acquitted three men convicted under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 after noting that the evidence of the police witnesses was thoroughly unconvincing & full of contradictions. The Apex Court also opined that the conviction of the accused-appellants as recorded by the trial Court and affirmed by the Telangana High Court suffered from the highest degree of perversity.

The facts of the case suggested that Mr. M. Srinivasa Rao, Inspector of Police(PW-1), claimed to have received credible information regarding transportation of ganja by two persons from Sangareddy to Hyderabad in a ‘Toyota Qualis’ vehicle. The Inspector PW-1 and the team members intercepted the vehicle and A-1 and A-2 were allegedly found present in the vehicle. On the request of the accused, a Gazetted Officer was called to the spot to associate in the proceedings. The accused were again given a notice under Section 50 of the NDPS Act by PW-4(V. Shyambabu) who also participated in the search proceedings. It was alleged that three bundles of ganja weighing around 80 kgs found lying in the vehicle were seized in presence of Inspector PW-1 and the panchas.

A-1 and A-2 were arrested and interrogated at the spot. Three samples weighing about 50 grams were drawn from each bundle contraband and remaining muddamal ganja was seized vide confession-cum-seizure panchnama (Exhibit P-3). A complaint came to be lodged. One part of sample collected from the recovered contraband was forwarded to the Forensic Science Laboratory (FSL) from where a report was received concluding that the sample was of ganja as defined under Section 2(b) of the NDPS Act. Acting on the confession/interrogation of the two occupants of the car, i.e. A-1 and A-2, the Investigating Officer apprehended the accused A-3 and A-4. After concluding the investigation, a charge-sheet was filed against the four accused in the trial Court. The trial Court proceeded to convict and sentence the accused. Being aggrieved by their conviction and the sentence awarded by the trial Court, the accused preferred an appeal under Section 374(2) CrPC in the High Court for the State of Telangana at Hyderabad which stood rejected. Thus, the accused persons preferred Criminal Appeal before the Apex Court. During the pendency of the appeal before the High Court, A-1 expired and the proceedings qua him stood abated.

Noticing that the case as set up by the prosecution was regarding recovery of narcotics from a vehicle which was stopped during transit, the Division Bench of Justice B.R. Gavai and Justice Sandeep Mehta opined that the procedure of search and seizure would be governed by Section 43 read with Section 49 of the NDPS Act.

It was observed that it couldn’t be said with any degree of certainty that the recovered ganja actually weighed 80 kgs. Neither any proceedings were conducted nor any memo was prepared by the police officers for repacking the seized ganja bundles in new packaging. Moreover, the two independent panch witnesses who were associated in the recovery proceedings, were not examined in evidence and no explanation was given by the prosecution as to why they were not being examined. The FSL report also didn’t disclose about the panch chits and seals and signature of the accused on samples. The property deposited in the Court was not having any official seals.

It was further noticed that 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”, the Bench held.

The Top Court also asserted, “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.”

In light of the fact that the accused A-3 and A-4 were not arrested at the spot, the Bench stated that the highest case of the prosecution which too was not substantiated by any admissible or tangible evidence was 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 wasbased on the interrogation notes of A-1 and A-2.

“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.

The Top Court was of the firm opinion that the prosecution had miserably failed to prove the charges against the accused. The evidence of the police witnesses was full of contradictions and was thoroughly unconvincing. The conviction of the accused appellants as recorded by the trial Court and affirmed by the High Court was illegal on the face of record and suffered from highest degree of perversity.

Thus, allowing the appeal, the Bench acquitted the accused persons.