Telangana High Court Acquits Accused In Ganja Cultivation Case; Says Oral Claims Can't Substitute Mandatory Compliance Under NDPS Act

The Telangana High Court has reiterated that oral claims of compliance by the Investigating Officer cannot substitute for the mandatory statutory requirement.

Reiterating the ratio laid down by the Supreme Court in Karnail Singh v. State of Haryana, State of Punjab v. Baldev Singh, Vijaysinh Chandubha Jadeja and State of Gujarat v. Jagraj Singh, the Court has held that recovery under the NDPS Act should be made in strict compliance of the established procedure, and lapses render the recovery doubtful.

The Bench further noted that although it was claimed that 3500 ganja plants were uprooted and burnt by the villagers under the supervision of the police, none of the alleged villagers were examined as witnesses, nor was any photo/video documentation produced before the Court to verify the same.

Justice J. Sreenivas Rao noted that oral claims of compliance by the officer could not substitute the mandatory statutory requirement. The Bench further noted that the Investigating Officer failed to file the General Diary entry, which would substantiate the fact that the same was sent to his superior officer within 72 hours as mandated under Section 42(2) of the NDPS Act. However, since no such General Diary formed part of evidence, it proves that he did not send a copy to his immediate senior. The court held:

“In the case on hand, PW.4 himself admitted that he informed regarding illegal cultivation of ganja to his superior officer on phone only and proceeded to the spot. Further, in the cross-examination, he stated that he received the information at about 8 a.m. on that day and the same was reduced into writing in the Station Diary, but the G.D. entry is not produced before the Court. 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.”

“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,” it added.

The order was passed in a criminal appeal filed by the accused, challenging the order passed by the Sessions Judge and sentencing the accused to rigorous imprisonment for a period of 5 years along with fine of INR 2,000 u/s 20(b)(i) of the NDPS Act.

The accused was alleged to have been illegally cultivating ganja on the field registered in the name of his wife.

The Counsel on behalf of the accused had argued that the conviction of his client was based solely on the confession given by the accused and that no evidence was produced to show that marijuana was being cultivated, except the 100 gms of marijuana sent for forensic analysis.

He further argued that although the police claimed to have documented the entire operation, no evidence was presented to support this claim.

Noting that the argument advanced by the counsel was meritorious, the Bench set aside the conviction and acquitted the accused.

“For the foregoing reasons as well as the principles laid down by the Hon'ble Supreme Court and also for violation of the procedures laid down, which is mandatory under Section 42(2) of the NDPS Act, the impugned judgment passed by the trial Court convicting the appellant/accused for the offence under Section 20(b)(i) of the NDPS Act is liable to be set aside.”

Case: Jadhav Gopal vs. State of AP.

Case No: CRL A 78 of 2013

Counsel for petitioner: G. Aravind appearing on behalf of Vivek Jain

Counsel for state: M. Vivekananda Reddy

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