Madras High Court Acquits Man Who Possessed 1.5 Kg Heroin Believing It To Be Wheat Flour

Though not in all cases, the carrier can plead absence of culpability, in the peculiar circumstances and facts of this case as narrated above, the knowledge of contraband in the Airbag cannot be attributed to the accused/appellant. Through his statement it is probablised that he had carried the parcel given by Venkateswara Rao, without knowing that it is a prohibited substance. By preponderance of probability, the accused had established the absence of knowledge.

The court thus set aside the order of conviction passed by the Special Court and directed refund of any fine amount paid.

The appellant was arrested by the authorities after getting telephonic information that one Venkateswara Rao of Chittor (since absconding), was planning to send 1 ½ Kg of Heroin by Fly Emirates Flight, through the appellant. The appellant contended that there was no culpable mental state as he carried the materials believing it to be wheat flour and tamarind given by the absconding accused.

The prosecution on the other hand submitted that the telephonic conversation between the appellant and the absconding accused would clearly prove that they were in frequent contact.

The court observed that the call records produced by the prosecution could not be accepted as these electronic evidence were not accompanied with certified under Section 65 B of the Evidence Act, 1872. At the same time, the officers who collected the call records were also not examined. Further no document was produced to prove that the cellular number belonged to the appellant. The trial Court erred in referring this inadmissible document to presume culpable mental state of the accused.

The court also noted that no effort had been taken to produce the absconding offender. Thus, the court held that the prosecution could not prove that the appellant was conscious of the presence of heroin in the parcel given to him. As a result, the court allowed the appeal.

Case Title: Anandam Gundluru v. Inspector of Police

Case No: Criminal Appeal No.118 of 2017

Citation: 2022 LiveLaw (Mad) 395

Counsel for the Appellant: Mr.T.S.Sasikumar