Accused’s Confessional Statement To Officers Empowered U/S.53 Of NDPS Act Inadmissible: Telangana High Court Acquits Accused

The High Court was considering a Criminal Appeal filed by the appellant/accused against the judgment under which the appellant was found guilty for the offence under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced to undergo rigorous imprisonment for a period of five years.

The Single Bench of Justice J.Sreenivas Rao held, “In the present case, the allegation of cultivating 3500 ganja plants is unsupported by any independent evidence, as neither photographs nor statements of the villagers who purportedly assisted in removal and burning of the ganja plants. The conviction rests solely on the accused’s confessional statement and in view of above mentioned principles such statements made to officers empowered under Section 53 of the NDPS Act are inadmissible and cannot form the basis of conviction. Hence, the principles laid down squarely apply to the case at hand.

Advocate Vivek Jain represented the Appellant while Advocate M. Vivekananda Reddy represented the Respondent.

Factual Background

The case dates back to the year 2009, when the accused was found in the field wherein about 3,500 ganja plants (5–10 ft.) were found intercropped with cotton. 100 grams of ganja samples were drawn under a panchanama in the presence of mediators and the Tahsildar, and the remaining plants were destroyed on the spot. The accused was apprehended at the scene. Subsequently, the case came to be registered under the NDPS Act, and the samples were sent for chemical analysis. The Chemical Examiner confirmed that the sample tested positive for ganja. The trial Court took cognisance of the offence under Section 8(b) read with 20(a) of the NDPS Act. The Sessions Judge convicted the accused. Aggrieved by the same, the accused preferred the appeal before the High Court.

Reasoning

On a perusal of the facts of the case, the Bench noted that the prosecution had not examined the villagers, who were present at the time of removal and burning of ganja plants. It was noticed that in the absence of any independent evidence, the trial Court concluded that the accused was found guilty of the offence under Section 20(b)(i) of the NDPS Act, solely basing upon the confession statement given by the accused. Admittedly, the land belonged to the wife of the accused, and he was doing cultivation.

The Bench also stated, “It is trite law 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.”

The Bench found that the allegation of cultivating 3500 ganja plants was unsupported by any independent evidence. The Bench also noticed that the prosecution had failed to produce independent or reliable evidence, no villagers who purportedly removed and burnt the ganja plants were examined, and the case was resting solely on the accused’s confession. “As held in Ravi Kumar supra, such lapses render the prosecution version doubtful, and the conviction cannot be sustained”, it asserted.

The Bench explained that under Section 42 of NDPS Act, any information that is received and reduced into writing has to be informed to the superior officer within 72 hours and the copy thereof shall be sent to the official superior. The Bench thus stated, “From the evidence of PW.4, it is revealed that he has not sent the copy to his immediate superior officer, which proves that he has not followed the mandatory procedure prescribed under Section 42(2) of NDPS Act.”

Thus, allowing the appeal, the Bench set aside the impugned judgment passed by the trial Court convicting the appellant/accused for the offence under Section 20(b)(i) of the NDPS Act.

Cause Title: Jadhav Gopal v. The State of A.P. (Case No.: Criminal Appeal No.78 of 2013)

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