'Excise Officials To Blame For Sordid State Of Affairs': AP High Court Sets Aside NDPS Conviction Upon Finding Both Mediators Were 'Stock Witnesses'

The Andhra Pradesh High Court has set aside a conviction under the NDPS act, upon findings inconsistencies in the investigation, holding that the Excise officials have themselves to blame for such a sordid state of affairs.

The order was passed by Justice A.V. Ravindra Babu in a criminal appeal filed against the conviction order under section 20 (ii)(B) r/w section 8(c) of the NDPS Act passed by the Additional District and Sessions Judge.

The counsel on behalf of the accused contended that the story narrated in the Chargesheet by the excise police is suspicious and false. He stated that although the prosecution would show that the mediators to the mahazarnama were two individuals chosen randomly at the scene of the incident, the cross-examination would reveal that one of the mediators was the driver of the excise jeep, who turned hostile and the other was not examined.

Justice Babu held, that although generally a witness turning hostile will not defeat the case of the prosecution, however, in the present case, it makes it difficult to not view the story of the prosecution suspiciously; since there is an element of falsity right from inception.

"It is to be noted that in ordinary course when a witness turned hostile either deviating from Section 161 of Cr.P.C. statement or from mahazarnama, Court cannot come to a conclusion that the investigation is false or the contents of mahazarnama are false, but, here is a case that Excise police alleged in Ex.P.1 that mediators were passengers. It proved to be false for the reason that P.W.3 was no other than the driver of Jeep of Excise Squad, who participated in the raid. The very act of the police in showing P.W.3 as a mediator, though it was alleged in Ex.P.1 that mediators were of the passengers, throws any amount of doubt about the bonafidies of the case of the prosecution. The Excise police officials in the raid must blame themselves for these sordid state of affairs."

The bench further noted that, if one witness turns hostile, as a general practice, the prosecution examines the second witness to establish the true facts. But, such a practice was not adopted by the prosecution in the instant case.

Justice Babu observed that it was not the case that the presence of the second witness could not be secured, because as rightly pointed out by the counsel for the accused, the second signatory had deposed before the Court recently in a different matter. Apart from this, the excise investigating officer in his cross-examination admitted that the second witness had earlier deposed in another case as well.

This inclined the Bench to conclude that both the witnesses presented by the prosecution seemed to be 'stock witnesses' (a witness who is at the beck and call of the police).

"It is not a case that he was not available for the prosecution to be examined as witness. On the other hand, on 10.12.2008 he deposed in another Sessions Case No.27 of 2007 as a mediator. The prosecution had knowledge that P.W.3 destroyed the case of the prosecution. If that be the case, it ought to have examined L.W.7-Ravoori Narayana Reddy. Without any reason, he was given up by the prosecution. Under the circumstances, I am of the considered view that it throws any amount of doubt about the bonafidies of the mahazarnama."

Background Facts

The prosecution contended that when the excise police were out on routine checks, in 2007, they noticed A1 (who has passed since the filing of this appeal) and A2 with two plastic gunny bags at the Kasireddy Nagar bus stop. Upon seeing the police, the accused seemed visibly flustered making the police suspicious. When the accused were approached by the excise officers and questioned about the contents of the gunny bag, the accused confessed that it was Ganja.

According to the story narrated by the prosecution, after this, the officers selected two mediators from the crowd at the bus-stop, informed the accused that the officer was a gazetted officer who would search the accused if they agreed or another gazetted officer would be called to search as per section 50 of the NDPS Act. When the accused accepted, they were checked and the ganja was seized and the accused were sent to remand.

But, when the case reached trial, one of the mediators deposed that he signed on the mahazarnama only in the excise office and the other remained unexamined.

The prosecution contended that despite the mediator turning hostile, he had signed the mahazarnama and recovery was made from the accused, tipping the benefit in favour of the investigating officials.

The bench also noted that the presence of a gazetted office would only be required when a personal search was being conducted and as such the incident as narrated in the charge sheet that the officer introduced himself as a gazetted officer and gave the option for another one was not bona fide.

With this finding the conviction order of the lower court was set aside and the accused was acquitted.

"Having regard to the overall facts and circumstances, I am of the considered view that the learned Special Judge did not notice to the fact that even Ravoori Narayana Reddy was a stock mediator who was given up by the prosecution without furnishing any reason though P.W.3 turned hostile. The evidence on record warrants the Court to extend the benefit of doubt against the accused. The evidence on record is not at all convincing so as to sustain a conviction against the accused."

CrlA 56 of 2009

Counsel for appellant: Siva Shankar Rao Borra

Counsel for State: Public Prosecutor.

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