The High Court · 2025

State of Andhra Pradesh, Rep by Public Prosecutor' High Court of A'P ' Hyderabad' ."COMPLAI NANT/RESPONDENT Counsel for the Appellants : SRI' A'PRABHAKAR RAO Counsel for the Respondent : PUBLIC PROSECUTOR The Court made the following: JUDGMENT l HON'BLE SRI J(,STICE K.SURENDER CRIMINAL APPEAL No.9OO OF 2Ot3 JUDGMENT: 1' The appenarLts 1 and 2 were convicted for the offence under Section 8(c) r/w 20(b)(ii)rt)) of Narcotic Drugs ard psychotropic Substalces Act (for short 'the Act') and sentenced to undergo rigorous imprisonment for a period of ten years vide judgment in S.C.No.S1 of 2O12, dated, 30.10.2013 passeJ by the Speciar Sessions Judge for T,rial of NDps Cases (I-Addition al Sessions Judge) Warangal. Aggrieved by the same, present appeal is fi1ed

2. During pendency of the appeal, the Superintendent of Jails, central Prison, th.ough letter dated 12 .og.2o24 informed that the 2.d appellant/ A2 dierl on 3O.OS.2O|T. Accordingly, Criminal Appea1 was dismissed as aba tr:d in respect of 2.a appell ant / A2 by this Court on 02.o9.2024.

3. Heard, Sri .\ prabhakar, learned counsel for the appellalt and learned Assistant ]hblic prosecutor for the State.

4. Briefly, the cese of the prosecution is that p.W. 1 is the Sub- Inspector of police, who was on patrolling duty on 06.03.12012. About 2'45 p'rn' he alon;3 with other police reached Hanamkonda. Bus stand l 2 arrd near plot form No'8, they found two persons' i'e'' A1 and A2' carrying two bags. P.W' 1 and others stopped A1 and A2 and the bags were weighed. Each bag was 8 kgs' Three samples of 100 grarns were drawn from each bag' P'W' 1 then prepared Ex'Pl panchanama' P'W'l marked MO1 during investigation' which is sample collected during proceedings.

5. P.W.2, who was mnning Kirana Shop at the 1oca1 Bus stand is a witness to the appellants being caught by the police men' P'W'3 is an independent witness, who was called by the police' According to him' in his presence Ex.PI panchanarna and Ex'P2 seizure panchanama' were prepared. P.W.4 is the Tahsildar' According to him' he went to the Bus stald, where A1 and A2 allegedly confessed that they purchased ganja from A3 to A5. According to P.w.4, three samples from each bag were collected and thereafter, property was kept in safe custody of the police' 6. P.W.5 turned hostile to the prosecution case: P'W'6 is the photographer. P.W'7 turned hostile to the prosecution case' P'W'S is the Circle Inspector of Police, who received Ex'P3 report from P'W' 1' He registered the case and effected arrest of A1 and A2' On 08'03'2O12' P.W.8 sent samples to the Chemical Engineer through SDPO' Halamkonda. Ex'P8 is the copy of letter of advise dated O6'O3'2O 12' I 7 3 P.w.8/investigal i,g officer, arrested A3, 44 a,d 45, o. the basis of ilformation give:r by A1 & A2. 7 . P.W.9 is t he Sub-Inspector of police, who collected FSL report Ex.P9. Exs.Plti and pl1 are the photographs of destruction of the contraband seize C from A,1 & A2.

8. Learned Sessions Judge found favour with the prosecution case a'd accordinglv, crtnvicted A1 and 42. However, A3 to A5 u,ere acquitted, since they were an-ayed as Accused only on the basis of corfession of A1 and A2

9. Learned coL:r.sel appearing for the appellant/A1 would submit that the procedure pres:ribed under Section 52-A of the Act was not foflowed. In the absence or .bllowing the procedure, the conviction rras to be set aside. The Hon,bte Supreme Court Simarr{it Singh v. State of Punjab t held as follor.r.s: 1n "8. ln porogrophs 15 to 17 of the decision of this court in Mohdnrol,s cosel , it wos herd thus: "75. lt is marilest from Section 52 A(2)include (supro) ,io, ,Oon seizure of the con,trabond the san.e hos to be Jorworded either to the ofiicer in_.chorge of the neorest police stotion or tc the ofJicer empowered under Sectiin 5j who sholt prepore on inventory ds stiputdled in the soid provision ond moke o, oriiroi,on to the lvlogistrdte for purposes of (o,) certit'ying the corre:tness of the inventory, ft) certifying phLttographs of such drugs or substonces token beJore lhe Mogistrote or' iu", ora k) tu drow relr:seltotive sonrples in the presence of the Mqgistrdte ond certilyinq the correctness of the list of somptt:s so drown. 16. Su|_section (3) i, o requires that the Mogistrote sholl a:, soon as moy be.ollow the opplicitio;. This im;;es thot no s,)oner the seizure is effected ond the controbqnd for*ord"d to tn" "fir"[ir-rnrrge of the police "ir*i", 12023 Lawsuit (SC) 8s9 ' i l I l l 4 stotion or the oflicer empowered, the officer concerned is in low duty-bound to opprooch the Mogistrate for the purposes mentioned obove including gront of permission to dtow ,"prrr*torir" somples in his presence, which somples wilt then be enlisted ond the correctness of the tist oJ samples so drown ceftilied by the Mogistrote' ln other words' the process if drowing of somples hos to be in the prcsence ond under the supervision ol the Mogij,jr;rc ond the entire exercise hos to be certified by him to be corrcct TT The questio; of drdwing of somples ot the time of seizure which' more often thon not' tokes plote in tie obsence of the Mogistrote does not in the obove scheme ol things orise' This is so especiolly when occording to section 52-A@) oI the Act' somples drown ond certified by the Mogistrote in complionce with subsections (2) and (3) oI Section 52-A obove constitute primory evidence for the purpose oJ the triol suffice it to soy thot there is no provision in the Act thot mandotes toking of somples ot the time of seizurc' Thot is perhops why none oI the stotes cloim to be tqking somples ot the time ol seizure"' g. Hence, the oct of PW-7 of drowing somples from ollthe pockets qt the time seizure is not in conformity with the low loid down by this Court in the cose ol Mohanlall ' This creotes o serious doubt qbout the prosecution's cose thot substdnce recovered wos o controbdnd." l0.Havingperusedtherecord,P.W.S/InvestigatingOffrcerStatedthat on 08.03.2012, he sent samples to Chemical Engineer through SDPO' Ex.PS is the copy of letter of advise' However, Ex'PS is dafed 06'03'2012 and signed by the Sub-Inspector of Police, Hanamkonda' In the said Ex.PS at serial No'5 only two items which are "Item No'1 sample dry ganja collected from B kgs seized. gania from the possession of A1' Item No.2: Sample dry gania collected. from B kgs seized ganja from the possession of A2' is shown' However, in the FSL report' it is mentioned that the dispatch letter is d'ated 26'03'2012 and six salnples were received.ItisnotclearaStowhatwasreceivedbytheFsLon26.03.2012 whentheletterofadviseisd.ated06.03.2012.Further,P.w.SStatedthat the samples were sent through SDPO' However' the said SDPO is not examined nor any document frled by prosecution reflects that ttre .':; 5 sarnples were fo:\varded by SDpO. Further, in the FSL report, Ex.p9, the description of the property is as follows: "R,eceiued ..;.ir sealed. paper couers eqch sealed_ uith ji.ue seals, tulttch are ir'.tact and, taltging uith the sampLe seal lctbeled as "Cr.No.B9/2)12, U/s.B(c) .-r/w 20 oy iOeS ect:. o/ pS Hanamkon,C t,' descrtbed betotu throujh Si;ri N.Sriniuas, pC 2634 on 23/ 04/ 2012". 11' The letter of advise is dated 06.03.2012 and dispatch letter in FsL is dated 26.03.20 [2, however, the report Ex.p9 reads that the samples were received thr,rugh the pC on 23.O4.2OI2. The said discrepancy is not explained by the Investigating ofrrcer. The chemicar Examiner was not examined during the course of tria-l. 72' Neither p'w r nor p.w.g stated about depositing the srrmples before the Court for the purpose of inventory ald sampling in accordance with Section 52-A of trLe Act' Though the photographs are filed to show that the contraba.d u'as destroyed, however, the orders for destruction arso do not form part of the record.

13. According to p.W. 1, six samples were drawn, horvever, Ex.pg reflects that two samples are sent to FSL. In the trial Court, MOI was marked as a sampl:. Where from the sample MO1, was produced is not clear' when six sanrples were drawn. None of the witnessesr stated that one sample or the rst:venth sample was taken and deposited in the Court. \ \ 6 In view of the said discrepancies and also following the judgment of Simarnjit Singh v. State of Punjab's case (supra), when the procedure under Section 52-A of the Act was not followed, the appeal deserves to be allowed.

14. In the result, the judgment of trial Court in S.C.No'51 of 2012, dated 3O.10.2O13 is set aside ald the appellalt/A 1 is acquitted'

15. Since the appellant is on bail, his bail bonds shall stald discharged.

16. Accordingly, Criminal Appeal is allowed. Sd/. C.V. MALLIKARJUNA VARMA JOINT REGISTRAR //TRUE COPY// SECTION OFFICER One fair Copy to the Hon'ble Sri Justice K'Surender ' (for nis LordshiP kind Perusal) To, Affairs, New Delhi. L Waranoal. (with iecords, if anY) '1 . The Special Judge for Trial of NDPS Cases Cum I Additional Sessions Judge' , ii: 3ixtil r$L;;ofii;'";. ilIriamkonoa potice station, wa ra nsal District 5. Tfre Superintendent, Central Jail, Warangal +. 11 LR Copies l s. fne UnOer Secretary, Union of lndia, tvlinistry of law' Justice and Company 6. tii;'$;;;trrv Aovclcates Association (TG) Librarv' High Court'BUildings z. cji,"-bdi. Sri A.Prabhakar Rao, Adv-ocate-(Ofuq) i. i;; ccsio iuuric prorelrtoi, Higr' court for the siate of Telangana at 9. Two CD CoPies Ks/gh w Hyderabad.(OUT) Hvderabad HIGH COUR:T DATED:21 102t2025 JUDGMENT CRLA.No.900 of 2013 h1 Is k 2 5 Alr I IIE t)* €.9 ALLOWINGTHE CRL.A. .ufa &r ((.t 7 ( f $ .- .ri -t 3',y-