Confessions to police officers are inadmissible; failure to follow mandatory procedures under the NDPS Act voids prosecution.

JUDGMENT :

J. SREENIVAS RAO, J.

1. This Criminal Appeal has been filed by the appellant/accused aggrieved by the judgment passed by the learned Special Judge for trial of Cases under N.D.P.S. Act-cum-I Additional Sessions Judge, Adilabad (for short, the ‘trial Court’), dated 17.01.2023, in N.D.S.C.No.1 of 2012, where under, the appellant was found guilty for the offence under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘NDPS Act’) and convicted and sentenced to undergo rigorous imprisonment for a period of five years and to pay fine of Rs.2,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months.

2. For the sake of convenience, the parties herein are referred to as they were arrayed before the trial Court.

3. The case of the prosecution in nutshell:

3.1. On 02.10.2009, upon receiving credible information about illegal cultivation of ganja, LW.5 along with staff and panch witnesses proceeded to agricultural land in Sy.No.10/185/E, Ac.1-32 guntas, Nimmathanda Village, Sirpur (U) Mandal. The accused Jadav Gopal was found in the field and stated that although the land stands in the name of his wife Jadav Sangeetha Bai, he attends to all agricultural operations. On inspection, 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, LW.5 registered PR No.258/2009-10 for the offence under Section 8(b) r/w 20(a) of the NDPS Act, 1985, and produced the accused before the Court for judicial remand. The samples were sent for chemical analysis, and the Chemical Examiner, Nizamabad, issued CE Report No.1012/09-1 dated 15.10.2009 confirming that the sample tested positive for ganja. The Adangal/Pahani for 2009– 10 recorded the accused’s wife as the pattadar of the land in Sy.No.10/185/E.

3.2. Basing on the said complaint, COR.No.258 of 2009 was registered against the accused for the offence under Section 8(b) read with 20(a) of NDPS Act and the Investigating Officer after conducting investigation filed the charge sheet. The trial Court has taken cognizance of the said offence and numbered it as N.D.S.C.No.1 of 2012.

3.3. On behalf of the prosecution, PWs.1 to 4 were examined, Exs.P1 to P7 got marked and M.Os.1 and 2 were marked. On behalf of defence, DW.1 was examined and no documents were marked.

3.4. Learned Sessions Judge after taking into consideration the oral and documentary evidence on record and after hearing the parties, convicted the accused for the offence under Section 20(b)(i) of NDPS Act as stated above. Aggrieved by the same, the accused has preferred the present appeal.

4. Heard Sri G. Aravind, learned counsel representing Mr. Vivek Jain, learned counsel for the accused, and Sri M. Vivekananda Reddy, learned Assistant Public Prosecutor appearing for the respondent-State.

5. Submissions of the learned counsel for the accused:

5.1. Learned counsel submitted that the accused has not committed any offence, much less the offence levelled against him under the NDPS Act. The prosecution failed to produce any evidence to prove the offence, however, the trial Court convicted the accused only based upon the confession statement given by accused at the time of recording panchanama on 02.10.2009, though the confession statement cannot be taken into consideration for convicting the accused. The confession statement is inadmissible as per the provisions of Sections 25 and 26 of the Indian Evidence Act, 1872.

5.2. The Investigating Officer has specifically stated that the entire process of search, seizure and destroying the crime property is video graphed covering the entire process, but no such video graph was filed. PW.1 in his evidence specifically stated that three to four persons removed the ganja plants and that the excise officia