* Author
[2024] 3 S.C.R. 23 : 2024 INSC 158
Mohammed Khalid and Another
v.
The State of Telangana
(Criminal Appeal No(s). 1610 of 2023)
01 March 2024
[B.R. Gavai and Sandeep Mehta,* JJ.]
Issue for Consideration
Whether the High Court was justified in affirming the judgment of
the trial court convicting and sentencing the accused appellants
for the charge u/s. 8(c) r/w. s.20(b)(ii)(c) of the Narcotic Drugs and
Psychotropic Substances Act, 1985.
Headnotes
Narcotic Drugs and Psychotropic Substances Act, 1985 – s.8(c)
r/w. s.20(b)(ii)(c) – Prosecution case that PW-1-Inspector and
team members intercepted a vehicle and A-1 and A-2 were
present in the vehicle – It was alleged that three bundles of
ganja weighing around 80 kgs found lying in the vehicle were
seized in the presence of PW-1 and the panchas – A-1 and A-2
were arrested on the spot and interrogated – Acting on their
interrogation/confession, A-3 and A-4 were arrested – Propriety:
Held: A perusal of the evidence of the Seizure Officer (Inspector
PW1) and the confession-cum-seizure panchnama (Exhibit P-3)
would reveal that the prosecution claims to have recovered the
contraband from three bags wherein the ganja as well as green
chillies were present – Seizure Officer(Inspector PW-1) made
no effort whatsoever to conduct a separate weighment of the
contraband by segregating the chillies – Rather, the panchnama
is totally silent about presence of chillies with the bundles of ganja
– When PW-5-Investigating officer appeared for deposition, he
produced the muddamal ganja in the Court and it was seen that
the same was packed in seven new bags as against the three
bags referred to in the seizure memo (Exhibit P-3) – Neither
any proceedings were conducted nor any memo was prepared
by the police officers for repacking the seized ganja bundles in
new packaging – Two independent panchas were not examined
– LW-10, who prepared three samples of ganja as per PW-5 was
also not examined – In addition thereto, the prosecution neither
24 [2024] 3 S.C.R.
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examined any witness nor produced any document to satisfy the
Court regarding safe keeping of the samples right from the time
of the seizure till the same reached the FSL – No proceedings
u/s. 52A were undertaken by the Investigating officer for preparing
inventory and obtaining samples in presence of jurisdictional
Magistrate – As far as A-3 and A-4 are concerned, it is not the
case of the prosecution that the accused A-3 and A-4 were found
in possession of ganja – The entire case of the prosecution as
against these two accused is based on the interrogation notes of
A-1 and A-2 – It is trite that confession of an accused recorded
by a Police Officer is not admissible in evidence as the same is
hit by Section 25 of the Evidence Act – The evidence of the police
witnesses is full of contradictions and is thoroughly unconvincing
– The conviction of the accused appellants as recorded by the
trial Court and affirmed by the High Court is illegal on the face of
record and suffers from highest degree of perversity. [Paras 19-24]
List of Acts
Narcotic Drugs and Psychotropic Substances Act, 1985; Evidence
Act, 1872.
List of Keywords
Recovery of narcotics; Confession-cum-seizure panchnama; Power
of seizure and arrest in public place; Power to stop and search
conveyance; Independent panch witnesses; Safe keeping of
samples; Preparation of inventory; Obtaining samples in presence
of jurisdictional Magistrate; Confession recorded by Police.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1610
of 2023
From the Judgment and Order dated 10.11.2022 of the High Court
for the State of Telangana at Hyderabad in CRLA No. 594 of 2011
Appearances for Parties
C. Nageswara Rao, Sr. Adv., Vikram Hegde, Chitwan Sharma, Ms.
Chinmayi Shrivastava, Shreeyash Uday Lalit, Tushar Singh, Praseena
Elizabeth Joseph, Advs. for the Appellants.
Kumar Vaibhaw, Ms. Devina Sehgal, Mohd. Ashaab, Advs. for the
Respondent.
[2024] 3 S.C.R. 25
Mohammed Khalid and Another v. The State of Telangana
Judgment / Order of the Supreme Court
Judgment
Mehta, J.
1. These appeals take exception to the final impugned judgment
dated 10th November, 2022 passed by the High Court for the State
of Telangana at Hyderabad rejecting the Criminal Appeal No.
594 of 2011 preferred by the appellants assailing the judgment
dated 30th May, 2011 passed by the Metropolitan Sessions Judge,
Hyderabad(hereinafter being referred to as ‘trial Court’) in Sessions
Case No. 563 of 2010.
2. By the aforesaid judgment, the learned trial Court, convicted the
appellants for the offence punishable under Section 8(c) read
with Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic
Substances Act, 1985(hereinafter being referred to as the
‘NDPS Act’) and sentenced each of them to undergo rigorous
imprisonment for a period of ten years and to pay a fine of
Rs.1,00,000/- each, in default, to suffer simple imprisonment for
a period of six months.
3. During the pendency of the appeal before the High Court, A-1 (Mohd.
Ishaq Ansari) expired and, therefore, the proceedings qua him stood
abated before the High Court.
4. For the sake of convenience, the accused will be referred to as
A-1(Md. Ishaq Ansari)(expired), A-2(S.A. Shafiullah), A-3(Mohd.
Khalid) and A-4(Md. Afsar).
Brief Facts :
5. Mr. M. Srinivasa Rao, Inspector of Police(PW-1), West Zone Task
Force (hereinafter being referred to as ‘Inspector PW-1’) claims
to have received credible information on 8th May, 2009 regarding
transportation of ganja by two persons from Sangareddy to
Hyderabad in a ‘Toyota Qualis’ vehicle. PW-1 apprised his superior
officers about such source information and after obtaining permission,
secured the presence of two panchas, namely, Shareef Shah and
Mithun Jana, to associate as panchas and proceeded to the spot
along with his team. The Inspector PW-1 and the team members
intercepted a Toyota Qualis vehicle bearing registration no. AP 09
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AL 6323 near Galaxy Theatre at 15:00 hours. A-1 and A-2 were
allegedly found present in the vehicle. The Inspector PW-1 served
them a notice under Section 50 of the NDPS Act. On the request of
the accused, a Gazetted Officer i.e., Inspector PW-4(V. Shambabu)
was called to the spot to associate in the proceedings. The accused
were again given a notice under Section 50 of the NDPS Act by PW4(V. Shyambabu) who also participated in the search proceedings
and it is alleged that three bundles of ganja weighing around 80
kgs found lying in the vehicle were seized in presence of Inspector
PW-1 and the panchas.
6. A-1 and A-2 were arrested and interrogated at the spot. Three samples
weighing about 50 grams were drawn from each bundle contraband
and remaining muddamal ganja was seized vide confession-cumseizure panchnama (Exhibit P-3). One part of the sample was handed
over to A-1 and A-2.
7. Inspector PW-1 thereafter proceeded to hand over the accused along
with the seized articles to LW-10(G. Naresh Kumar, Sub-Inspector
of Police, Golkonda Police Station)(hereinafter being referred to as
‘Sub-Inspector LW-10’) for further action. Based on these proceedings,
a complaint came to be lodged at the Golkonda Police Station and
Criminal Case No. 181 of 2009 was registered and investigation
was commenced.
8. One part of sample collected from the recovered contraband was
forwarded to the Forensic Science Laboratory (FSL) from where a
report (Exhibit P-11) was received concluding that the sample was
of ganja as defined under Section 2(b) of the NDPS Act. Acting on
the confession/interrogation of the two occupants of the car, i.e.
A-1 and A-2, the Investigating Officer (PW-5 K. Chandrasekhar
Reddy)(hereinafter being referred to as ‘Investigating Officer PW5’) apprehended the accused A-3 and A-4. After concluding the
investigation, a charge-sheet was filed against the four accused in
the trial Court.
9. Upon being charged for the offence punishable under Section 8 read
with Section 20(b)(ii)(c) of the NDPS Act, the accused pleaded not
guilty and claimed trial. The prosecution examined five witnesses
and exhibited 13 documents to prove its case as per the following
table:-
[2024] 3 S.C.R. 27
Mohammed Khalid and Another v. The State of Telangana
PW1 M. Srinivasa Rao, complainant-cum-investigating
officer
PW2 Mohd. Illiyas Akber, panch witness
PW3 Sk. Shamshuddin Ahmed, panch
PW4 V. Shyambabu, Gazetted Officer
PW5 K. Chandrasekhar Reddy, Investigating Officer
Exhibit P1 Notice to accused
Exhibit P2 Complaint
Exhibit P3 Confession-cum-seizure panchnama of A1 and A2
Exhibit P4 Bunch of (2) photographs
Exhibit P5 Signature of PW2 on panchnama of A3
Exhibit P6 Signature of PW2 on panchnama of A4
Exhibit P7 Signature of PW3 on panchnama of A3
Exhibit P8 Signature of PW3 on panchnama of A4
Exhibit P9 Notice to accused No. 1 and 2
Exhibit P10 First Information Report
Exhibit P11 FSL Report
Exhibit P12 Seizure panchnama of A3
Exhibit P13 Seizure panchnama of A4
10. The accused, upon being questioned under Section 313 of Code of
Criminal Procedure, 1973(hereinafter being referred to as ‘CrPC’)
denied the prosecution allegations but chose not to lead any evidence
in defence. The trial Court proceeded to convict and sentence the
accused in the above terms by the judgment dated 30th May, 2011.
11. Being aggrieved by their conviction and the sentence awarded by
the trial Court, the accused preferred an appeal under Section 374(2)
CrPC in the High Court for the State of Telangana at Hyderabad
which stood rejected vide the judgment dated 10th November, 2022.
12. A-3 and A-4 have preferred Criminal Appeal No. 1610 of 2023 and
A-2 has preferred Criminal appeal No. 1611 of 2023 for assailing
the impugned judgment dated 10th November, 2022 of High Court
whereby the conviction recorded and sentences awarded to the
accused by the trial Court have been affirmed.
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Submissions on behalf of the accused appellants :
13. Learned counsel representing A-2(S.A. Shafiullah) advanced the
following submissions to assail the impugned judgment and seeking
acquittal for the accused:-
(i) That the independent panch witnesses associated with the
search and seizure were not examined in evidence and hence
the entire search and seizure proceedings become doubtful
and are vitiated;
(ii) That it is admitted that the contraband ganja was seized from
three bags which were also having green chillies therein.
However, the Seizure Officer made no effort whatsoever to
segregate the chillies and the alleged contraband and hence it
cannot be held with any degree of certainty that the recovered
contraband ganja fell within the category of commercial quantity;
(iii) That the prosecution failed to ensure compliance of the
requirements of Section 52A of the NDPS Act inasmuch as,
no sampling procedure was undertaken before the Magistrate;
(iv) That the Seizure Officer (Inspector PW-1) claims to have
collected a total of three samples (one from each bundle of
ganja) and handed over one part of the sample to the accused.
However, when the articles were received at the FSL, three
distinct sample packages were found which upon testing gave
the presence of ‘cannabis sativa’. It was thus submitted that
only two samples remained with the Investigation Officer and
hence there is a grave contradiction and doubt regarding the
sanctity of the samples collected by the Seizure Officer (Inspector
PW-1) at the time of seizure.
(v) Attention of the Court was also drawn to the evidence of PW-5
who stated that three samples of ganja were taken by SubInspector LW-10, who handed over these sample packets to
witness. However, this fact is contradicted by the evidence of
the Seizure Officer(Inspector PW-1)), who stated that it was he
who collected three samples from the contraband(three bundles
of ganja) and handed one over to the accused under proper
acknowledgment. Thus, as per the learned counsel, the FSL
report is honest in the eyes of law as the sampling procedure
is totally flawed;
[2024] 3 S.C.R. 29
Mohammed Khalid and Another v. The State of Telangana
(vi) That three bundles/packets of ganja were allegedly seized
from the vehicle ‘Toyota Qualis’ in possession of A-1(Mohd.
Ishaq Ansari) and A-2(S.A. Shafiullah) but when Investigating
Officer PW-5 appeared in the witness box, he produced seven
packets wherein the contraband was packed. These packets
were not having any seals or identifying marks, i.e., signature
of the accused and the panchas. Thus, it is apparent that the
original muddamal seized at the spot was never produced and
exhibited in the Court;
(vii) That Sub-Inspector LW-10 who allegedly handed over
the sample packets to Investigating Officer PW-5 was not
examined in evidence. Furthermore, the carrier Constable who
transmitted the samples to the FSL was also not examined by
the prosecution;
(viii) No document pertaining to deposit of the samples at the Police
Station and the transmission thereof to the FSL was exhibited
on record. The samples were forwarded to the FSL after a
gross delay of more than two months and hence, the FSL
report cannot be read in evidence because the required link
evidence is missing.
14. Learned counsel representing A-3 and A-4 urged that these accused
were not found present at the spot at the time of seizure. They were
arrested on 30th May, 2009 merely on the basis of the interrogation
notes of A-1 and A-2 and were charged for offence under Section 8
read with Section 20(b)(ii)(c) of NDPS Act. As the prosecution never
came out with a case that the contraband was recovered from the
possession of these two accused, their conviction for the offence
under Section 8 read with Section 20(b)(ii)(C) of the NDPS Act is ex
facie illegal and unsustainable on the face of the record.
Arguments on behalf of State :
15. Per contra, learned counsel representing the State, vehemently and
fervently opposed the submissions advanced by learned counsel
for the appellants. He urged that two Courts, i.e., the trial Court as
well as the High Court, have recorded concurrent findings of facts
for convicting the appellants and for affirming their conviction and
hence, this Court in exercise of the jurisdiction under Article 136 of
the Constitution of India should be slow to interfere in such concurrent
findings of facts. He thus implored the Court to dismiss the appeals.
30 [2024] 3 S.C.R.
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Discussion and Conclusion :
16. We have given our thoughtful consideration to the submissions
advanced at the Bar and have gone through the impugned judgment
and the evidence available on record.
17. Before discussing the prosecution evidence, we would like to note
that the case as set up by the prosecution is regarding recovery
of narcotics from a vehicle which was stopped during transit.
Thus, the procedure of search and seizure would be governed
by Section 43 read with Section 49 of the NDPS Act which are
reproduced below:-
“43. Power of seizure and arrest in public place.—Any
officer of any of the departments mentioned in Section
42 may—
(a) seize in any public place or in transit, any narcotic drug
or psychotropic substance or controlled substance in
respect of which he has reason to believe an offence
punishable under this Act has been committed, and,
along with such drug or substance, any animal or
conveyance or article liable to confiscation under
this Act, any document or other article which he
has reason to believe may furnish evidence of the
commission of an offence punishable under this Act
or any document or other article which may furnish
evidence of holding any illegally acquired property
which is liable for seizure or freezing or forfeiture
under Chapter V-A of this Act;
(b) detain and search any person whom he has reason
to believe to have committed an offence punishable
under this Act, and if such person has any narcotic
drug or psychotropic substance or controlled
substance in his possession and such possession
appears to him to be unlawful, arrest him and any
other person in his company.
Explanation.—For the purposes of this section, the
expression “public place” includes any public conveyance,
hotel, shop, or other place intended for use by, or accessible
to, the public.
[2024] 3 S.C.R. 31
Mohammed Khalid and Another v. The State of Telangana
49. Power to stop and search conveyance.—Any officer
authorised under Section 42, may, if he has reason to
suspect that any animal or conveyance is, or is about to be,
used for the transport of any narcotic drug or psychotropic
substance [or controlled substance], in respect of which
he suspects that any provision of this Act has been, or
is being, or is about to be, contravened at any time, stop
such animal or conveyance, or, in the case of an aircraft,
compel it to land and—
(a) rummage and search the conveyance or part thereof;
(b) examine and search any goods on the animal or in
the conveyance;
(c) if it becomes necessary to stop the animal or the
conveyance, he may use all lawful means for stopping
it, and where such means fail, the animal or the
conveyance may be fired upon.”
18. We now proceed to some important excerpts from the prosecution
evidence:-
(a) Complaint dated 8th May, 2009(Exhibit P-2)
“Then I recorded the confession-cum-seizure panchnama
of the accused persons A-1 and seized three bundles
containing Ganja in it from their possession. On weighing
the three bundles it was found about 80 kgs of Ganja in it.
Out of the seized Ganja we have taken three samples and
marked as S-1 and S-3 each sample packet containing
50 grams of Ganja and affixed panch chits. Also seized
Maroon, colour Qualis vehicle bearing No. AP 09AL 6323
Engine No. 2L9722612, Chassis No. LF50-104863512/01
from the possession of the accused persons. Out of the
seized Ganja drawn three samples containing 50 grams
marked S-1 to S-3, each packed in polythene covers and
attached panch chits to them. The sample is supplied to
the accused Mohd Ishaq Ansari and S.A. Ashafiullah.”
(b) Exhibit P-11(FSL Report) –
“Received one sealed cloth parcel sealed with six seals,
which are intact and tallying with the sample seal labelled as
32 [2024] 3 S.C.R.
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“Cr. No. 181/2009” containing a cardboard box containing
three closed polythene packets each labelled as “S-1,
S-2 & S-3” respectively described below through Sri K.
Narsimulu, PC 7770 on 14/07/2009.”
(C) PW-1
“I collected three samples weighing about 50 gms each
and given one sample to the accused under proper
acknowledgement.”
“M.O.I is the ganja packed in seven bags.”
“There are no panch chits right now on M.O.I bags.”
“It is true that the bags, deposited before the court are
not having, seals. I, have weighed the Ganja only and it
is weighing 80 Kgs, but I have not weighed the chillies.
The total weight of the Ganja bundles as mentioned in
the panchnama includes the weight, of chillies. I have not
mentioned about sealing of samples in my panchnama. I
have not mentioned in panchnama in what containers. I
have taken, the samples.”
“As per the panchnama one sample was given to the
accused. I have taken 3 samples and out of them I have
given one sample to both the accused and two samples
I handed over in police station.”
(d) PW-4
“PW1 seized 3 ganja bundles weighing around 80 kgs and
collected samples of 50 grams from the bundles.”
(e) PW-5
“Originally three bundles of ganja was seized from the
accused and as the Ganja was becoming dry and turning
into dust, and due to the holes of the bags it is coming
out, and therefore we transferred the Ganja into 7 new
bags, which was already marked as M.O.1.”
“Three samples of Ganja have been taken by LW 10 and
handed over the samples to me. We have forwarded the
three samples to FSL through A.C.P., and submitted FSL
report Ex. P.11.”
[2024] 3 S.C.R. 33
Mohammed Khalid and Another v. The State of Telangana
“The samples were taken on 8.5.2009 and they were
forwarded to FSL on 7.7.2009 i.e. after two months of
taking of samples. The samples were not deposited in
the court.”
“I did not file any document to show that where the
property was kept in Maalkhana. I did not produce any
Maalkhana register in this case. The property was sent to
FSL after two months of its seizure. The FSL report, does
not disclose about the panch chits and seals and quantity
of samples. The property deposited in court is not having
any official seals.”
“I did not report to the court till today that the ganja was
getting dried up and becoming dust, I converted them from
three bundles to 7 bags for safe custody.”
19. A perusal of the evidence of the Seizure Officer (Inspector PW-1) and
the confession-cum-seizure panchnama (Exhibit P-3) would reveal
that the prosecution claims to have recovered the contraband from
three bags wherein the ganja as well as green chillies were present.
Seizure Officer(Inspector PW-1) made no effort whatsoever to conduct
a separate weighment of the contraband by segregating the chillies.
Rather, the panchnama is totally silent about presence of chillies
with the bundles of ganja. Thus, it cannot be said with any degree of
certainty that the recovered ganja actually weighed 80 kgs. Seizure
Officer(Inspector PW-1) also stated that he collected three samples
of ganja at the spot and handed over one sample to accused. If this
was true, apparently only two sample packets remained for being
sent to the FSL. Contrary to the evidence of PW-1, PW-5 stated
that three samples of ganja were taken by LW-10 who handed the
same over to him. Thereafter, these samples were forwarded to the
FSL through the ACP and a FSL report (Exhibit P-11) was received.
When PW-5 appeared for deposition, he produced the muddamal
ganja in the Court and it was seen that the same was packed in
seven new bags as against the three bags referred to in the seizure
memo (Exhibit P-3). Neither any proceedings were conducted nor
any memo was prepared by the police officers for repacking the
seized ganja bundles in new packaging.
20. The two independent panch witnesses i.e. Shareef Shah and Mithun
Jana who were associated in the recovery proceedings, were
34 [2024] 3 S.C.R.
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not examined in evidence and no explanation was given by the
prosecution as to why they were not being examined.
21. Sub-Inspector LW-10, who prepared three samples of ganja, as per
the testimony of PW-5, was not examined in evidence. In addition
thereto, the prosecution neither examined any witness nor produced
any document to satisfy the Court regarding safe keeping of the
samples right from the time of the seizure till the same reached the
FSL. The official who collected the samples from the police station
and carried the same to the FSL was not examined at the trial.
From the quoted portion of the evidence of Seizure Officer(Inspector
PW-1), it is clear as day light that he handed over one of the three
samples to the accused. The witness also admitted that he did not
mention about sealing of the samples in the panchnama. Contrary
to the evidence of PW-1, PW-5 stated that three samples of ganja
were taken out by Sub-Inspector LW-10 and were handed over to
the witness who forwarded the same to the ACP for sending it to
FSL. In cross-examination, the witness admitted that he did not file
any document to show that the property was kept in malkhana. The
malkhana register was not produced in the Court. The FSL report
(Exhibit P-11) does not disclose about the panch chits and seals
and signature of the accused on samples. The property deposited in
the Court(muddamal) was not having any official seals. The witness
also admitted that he did not take any permission from the Court for
changing the original three packets of muddamal ganja to seven new
bags for safe keeping. These glaring loopholes in the prosecution
case give rise to an inescapable inference that the prosecution has
miserably failed to prove the required link evidence to satisfy the Court
regarding the safe custody of the sample packets from the time of
the seizure till the same reached the FSL. Rather, the very possibility
of three samples being sent to FSL is negated by the fact that the
Seizure Officer handed over one of the three collected samples to
the accused. Thus, their remained only two samples whereas three
samples reached the FSL. This discrepancy completely shatters the
prosecution case.
22. Admittedly, no proceedings under Section 52A of the NDPS Act
were undertaken by the Investigating Officer PW-5 for preparing an
inventory and obtaining samples in presence of the jurisdictional
Magistrate. In this view of the matter, the FSL report(Exhibit P-11)
is nothing but a waste paper and cannot be read in evidence. The
[2024] 3 S.C.R. 35
Mohammed Khalid and Another v. The State of Telangana
accused A-3 and A-4 were not arrested at the spot. The offence under
Section 20(b)(ii)(c) deals with production, manufacture, possession,
sale, purchase, transport, import or export of cannabis. It is not the
case of the prosecution that the accused A-3 and A-4 were found
in possession of ganja. The highest case of the prosecution which
too is not substantiated by any admissible or tangible evidence is
that these two accused had conspired sale/purchase of ganja with
A-1 and A-2. The entire case of the prosecution as against these
two accused is based on the interrogation notes of A-1 and A-2.
23. It is trite that confession of an accused recorded by a Police Officer
is not admissible in evidence as the same is hit by Section 25 of the
Evidence Act. Neither the trial Court nor the High Court adverted
to this fatal flaw in the prosecution case and proceeded to convict
A-3 and A-4 in a sheerly mechanical manner without there being
on iota of evidence on record of the case so as to hold them guilty.
24. As a consequence of the above discussion, we are of the firm
opinion that the prosecution has miserably failed to prove the charges
against the accused. The evidence of the police witnesses is full
of contradictions and is thoroughly unconvincing. The conviction of
the accused appellants as recorded by the trial Court and affirmed
by the High Court is illegal on the face of record and suffers from
highest degree of perversity.
25. Resultantly, the judgment dated 10th November, 2022 passed by the
High Court affirming the judgment of the trial Court convicting and
sentencing the accused appellants for the charge under Section 8(c)
read with 20(b)(ii)(c) of the NDPS Act is hereby quashed and set
aside. The appellants are acquitted of all the charges. They are in
custody and shall be released forthwith, if not wanted in any other
case.
26. The appeals are accordingly allowed.
27. Pending application(s), if any, shall stand disposed of.
Headnotes prepared by: Ankit Gyan Result of the case:
Appeals allowed.