Isabella Mariam

The High Court of Telangana Single Bench of Justice J. Sreenivas Rao has allowed a criminal appeal under the NDPS Act, set aside the conviction and sentence, and acquitted the accused, discharging his bail bonds. The State alleged cultivation of about 3,500 ganja plants on agricultural land and seizure of samples during a field inspection. The Court held that an Investigating Officer’s oral claim of compliance cannot replace the statutory requirement to record information in writing and forward it to a superior and noted the absence of photographs and independent witnesses to support the recovery. Drawing on Karnail Singh, Baldev Singh, Vijaysinh Chandubha Jadeja and Jagraj Singh, it held that NDPS recoveries must follow the established procedure and that lapses make the recovery doubtful.

The criminal appeal arose from a conviction recorded by the Special Judge for trial of NDPS cases-cum-I Additional Sessions Judge, Adilabad, whereby the accused was found guilty of an offence relating to alleged cultivation of ganja and sentenced to rigorous imprisonment with fine. The prosecution case was that, based on prior information, excise officials inspected an agricultural land where ganja plants were allegedly found intercropped with cotton. Samples were drawn, the remaining plants were destroyed at the spot, and the accused was apprehended. The land was recorded in the name of the accused’s wife, though the prosecution alleged that the accused was managing agricultural operations. Chemical analysis confirmed the seized sample as ganja.

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During trial, prosecution witnesses spoke about removal and burning of plants, videography, and photography of the process, though such material was not produced before the court. The defence contended that the conviction was based solely on a confession recorded during the panchanama and that mandatory procedural requirements under the NDPS Act were not followed. The prosecution maintained that the evidence on record was sufficient to sustain the conviction.

The Court observed that “the prosecution has not examined the villagers, who were present at the time of removal and burning of ganja plants” and noted that photographs allegedly taken during removal and burning were not produced. It recorded that “in the absence of any independent evidence, the trial Court came to a conclusion … solely basing upon the confession statement given by the accused”.

On the evidentiary value of such statements, the Court stated that “the confession statement given by the accused is inadmissible under law, especially in view of the provisions of Sections 25 and 26 of the Indian Evidence Act, 1872”. Referring to binding precedent, it recorded that officers empowered under the NDPS Act are treated as police officers for the purpose of Section 25 of the Evidence Act and that “statements recorded under Section 67 of the NDPS Act cannot be treated or relied upon as confessional statements for the purpose of convicting an accused”.

With regard to procedural compliance, the Court observed that PW.4 admitted that information regarding alleged cultivation was conveyed to a superior officer only over the phone. It further noted that “the G.D. entry is not produced before the Court” and that the copy of written information was not forwarded to the immediate superior. The Court recorded that “he has not followed the mandatory procedure prescribed under Section 42(2) of NDPS Act”.

The Court also referred to precedent holding that total non-compliance with Section 42(2) is impermissible and that oral assertions cannot substitute statutory requirements. It stated that “when it is not proved by the prosecution that search and seizure was in compliance of Section 42 of the NDPS Act, it is fatal to the prosecution case”.

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The Court directed that “the Criminal Appeal is allowed. The judgment passed by the learned Special Judge for trial of Cases under NDPS Act-cum-I Additional Sessions Judge, Adilabad … convicting the appellant/accused … is set aside. The appellant/accused is acquitted for the offence under Section 20(b)(i) of the NDPS Act. His bail bonds shall stand discharged”. Miscellaneous applications pending, if any, shall stand closed.”

Advocates Representing the Parties

For the Appellant: Mr. Vivek Jain, Advocate
For the Respondent: Mr. M. Vivekananda Reddy, Assistant Public Prosecutor

Case Title: Jadhav Gopal v. State of Andhra Pradesh
Case Number: Criminal Appeal No.78 of 2013
Bench: Justice J. Sreenivas Rao