Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 18 - For proving the offence under the NDPS Act, it is necessary for the prosecution to establish that the quantity of the contraband goods allegedly seized from the possession of the accused and the best evidence would be the court records as to the production of the contraband before the Magistrate and deposit of the same before the Malkhana or the document showing destruction of the contraband.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
[RANJAN GOGOI, J.] [R. BANUMATHI, J.] [NAVIN SINHA, J.]
August 14, 2018
CRIMINAL APPEAL NO. 2182 OF 2010
MOHINDER SINGH ...Appellant
Versus
THE STATE OF PUNJAB ...Respondent
J U D G M E N T
R. BANUMATHI, J.
This appeal arises out of the judgment dated 30.06.2010 passed
by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal
No.199-DBA of 2002 in and by which the High Court reversed the judgment of
acquittal of the appellant/accused and convicted him under Section 18 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced
him to undergo ten years imprisonment.
2. Briefly stated case of the prosecution is that on 30.04.1998, Joginder
Singh, SI, Police Station Sadar Ludhiana (PW-2) along with other police
officials was checking the vehicles on the bridge ofGill Canal towards the side
of village Gill. Meanwhile, at about 7.00-7.30 pm, appellant Mohinder Singh
came on his scooter No.PB-10B-2413. A signal was given to stop the scooter and
the appellant/accused stopped his scooter. It was suspected that some
contraband substance was being carried in the bag. Appellant/accused was
informed of his right of search before a Gazetted Officer or a Magistrate.
Joginder Singh (PW-2) called Gurjit Singh, DSP (PW-4) and the bag carried by
the appellant/accused was searched in his presence and the substance bag was
found to be “opium”.
On weighment, it was found to be 7 kilos and 40 gms. Two samples from the
recovered “opium”, each weighing 20 gms were taken and sealed
separately having monogram ‘JS’ and ‘GS’ and taken into possession vide recovery memo Ext.-PE. Case property along with
two samples was deposited with Baldev Singh MHC (PW-5). Next day i.e. on 01.05.1998,
the case property as well as the sample parcels were produced before the Area
Magistrate who is said to have initialled the case property and the sample
parcels. The sample parcels were sent to Forensic Science Laboratory (FSL) and
subjected to chemical analysis and the contents were found to be “opium” in FSL report vide Ext.-P1. After completion of the investigation, charge sheet was
filed against appellant under Section 18 of the NDPS Act.
3. To prove the guilt of the accused, the prosecution has examined
Constable Hardev Singh (PW-1), SI Joginder Singh (PW-2), ASI Harbhajan Singh
(PW-3), DSP Gurjit Singh (PW-4) and Baldev Singh, MHC (PW-5). The appellant was
examined under Section 313 Cr.P.C. to explain the incriminating evidence circumstance
appearing in the prosecution evidence and he denied all of them.
4. The trial court acquitted the appellant inter alia on the ground that there was non-compliance of
Section 50 of the NDPS Act. The trial court further held that no order of the
Magistrate was proved to show that the case property was produced before the
court, was brought in evidence to show that the seal of the sample sent to FSL tallied
with the seal of the contraband, and it cannot thus be said that the evidence
regarding such production of case property before the Magistrate was
trustworthy. Being aggrieved by the acquittal, the State has preferred appeal
before the High Court.
5. Placing reliance upon State of Punjab v. Baldev Singh (1998) 2 SCC 724, the High Court held that
recovery of contraband from a bag/attache which the accused was carrying in his
hands, would not amount to search of person and as such Section 50 of the NDPS
Act will not apply. Based on the evidence of SI JoginderSingh (PW-2) and
Harbhajan Singh (PW-3), the High Court held that the case property parcels of
the samples and the samples having the seals of ‘JS’ and ‘GS’ were duly
produced before the Magistrate and on those findings, the High Court reversed
the order of acquittal and convicted the appellant under Section 18 of the NDPS
Act and sentenced him to undergo ten years imprisonment. Being aggrieved, the
appellant/accused has preferred this appeal.
6. Mr. Harkesh Singh, learned counsel for the appellant inter-alia submitted that since the contraband alleged to
have been seized from the accused was not produced before the trial court,
conviction of the appellant cannot be sustained. Learned counsel for the appellant
placed reliance upon Ashok alias Dangra Jaiswal v. State of Madhya Pradesh (2011) 5 SCC 123 to contend that where the
narcotic drug or the psychotropic substance seized from the possession of the
accused is not produced before the Magistrate and when there is no evidence to
connect the forensic science report with the drug or the substance that was
seized from the possession of the accused in such a case the conviction of the appellant/accused
is not sustainable.
7. Learned counsel for the State has submitted that from the oral evidence
of SI Joginder Singh (PW-2) and ASI Harbhajan Singh (PW-3), the production of
the contraband seized from the accused before the court has been proved by the
prosecution. It was submitted that the evidence and materials on record amply
proves the production of the contraband along with the sample packets before
the Magistrate. It was submitted that the trial court was not right in
acquitting the accused and the High court rightly set aside the acquittal and
the impugned judgment does not warrant any interference.
8. We have considered the submissions and perused the impugned
judgment, evidence and other materials on record. We have also taken pains to
look into the original records that were called for from the trial court.
9. On behalf of the appellant, contention was raised as to the non-compliance
of Section 50 of the NDPS Act to submit that the safeguards stipulated under
Section 50 were not complied with. In the present case, the appellant was
carrying the contraband-about seven Kilos of “opium” in the bag which he was carrying in the scooter. Carrying the
contraband in the scooter/bag cannot be saidto be ‘by the person’ necessitating
compliance of Section 50 of the NDPS Act for personal search. Reference in this
regard can be made to the decision in State of H.P. v. Pawan Kumar (2005) 4 SCC 350.
10. So far as the contention regarding production of the contraband
seized from the accused, in his evidence, Harbhajan Singh (PW-3) stated that on
01.05.1998, he produced the sample parcels and the case property parcels with
the seal and the sample seals before the Judicial Magistrate, Ludhiana and the
Magistrate has recorded the seals tallied with the specimen impression. Harbhajan
Singh (PW-3) further stated that after return of the samples and the parcels
from the court, the same were lodged by him to the Malkhana on 01.05.1998
itself. Baldev Singh (PW-5) the then Malkhana in charge though orally stated
about the deposit of the contraband in the Malkhana, but Baldev Singh (PW-5)
has not produced Register No.19 maintained in the Malkhana to show the relevant
entry in Register No.19 as to deposit of the case property in the Malkhana.
Oral evidence of Harbhajan Singh (PW-3) and Baldev Singh (PW-5) as to the
deposit of the contraband seized from the accused with Malkhana is not
corroborated by the documentary evidence namely the entry in Register No.19.
11. After referring to the oral evidence of Joginder Singh (PW-2) and
Harbhajan Singh (PW-3), the trial court in para (14) of its judgment has
recorded the finding that no order of the Magistrate to prove the production of
the contraband before the Magistrate was available on the file. After recording
such observation, the trial court held that the oral evidence regarding
production of the case property before the Magistrate was not trustworthy and
not acceptable. In the absence of the order of the Magistrate showing that the
contraband seized from the accused was produced before the Magistrate, the oral
evidence adduced that the contraband was produced before the Magistrate cannot
form the basis to record the conviction.
12. For proving the offence under the NDPS Act, it is necessary for
the prosecution to establish that the quantity of the contraband goods
allegedly seized from the possession of the accused and the best evidence would
be the court records as to the production of the contraband before the
Magistrate and deposit of the same before the Malkhana or the document showing
destruction of the contraband.
13. In Vijay Jain v. State of Madhya Pradesh (2013) 14 SCC 527, this Court reiterated the
necessity of production of contrabandsubstances seized from the accused before
the trial court to establish that the contraband substances seized from the
accused tallied with the samples sent to the FSL. It was held that mere oral evidence
to establish seizure of contraband substances from the accused is not
sufficient. It was held as under:-
“10. On
the other hand, on a reading of this Court’s judgment in Jitendra v. State of
M.P. (2004) 10 SCC
562, we find that this Court has taken a view that in
the trial for an offence under the NDPS Act, it was necessary for the
prosecution to establish by cogent evidence that the alleged quantities of the
contraband goods were seized from the possession of the accused and the best
evidence to prove this fact is to produce during the trial, the seized
materials as material objects and where the contraband materials alleged to have
been seized are not produced and there is no explanation for the failure to
produce the contraband materials by the prosecution, mere oral evidence that
the materials were seized from the accused would not be sufficient to make out
an offence under the NDPS Act particularly when the panch witnesses have turned
hostile. Again, in Ashok v. State of M.P. (2011) 5 SCC 123, this Court found that the alleged narcotic powder
seized from the possession of the accused was not produced before the trial
court as material exhibit and there was no explanation for its nonproduction and
this Court held that there was therefore no evidence to connect the forensic
report with the substance that was seized from the possession of the appellant.”
14. The High Court appears to have gone by the oral evidence of Joginder
Singh (PW-2) and Harbhajan Singh (PW-3) that the contraband allegedly seized
from the accused was produced before the Magistrate. When the trial court which
is in possession of the case records recorded a finding that there is no order
of the Magistrate showing the production of the contraband before thecourt and
acquitted the accused on that basis, in our view, the High Court ought not to
have interfered with the said order of acquittal.
15. In an appeal against acquittal, the High Court will not
interfere unless there are substantial and compelling reasons to reverse the order
of acquittal. The mere fact that on reappreciation of evidence the appellate
court is inclined to arrive at a conclusion which is at variance with the trial
court, the same cannot be the reason for interference with the order of
acquittal. After referring to various judgments in Chandrappa and
others v. State of Karnataka (2007) 4 SCC 415, this Court summarised the general principles regarding
the powers of the appellate court while dealing with an appeal against the order
of acquittal and held as under:-
“42. From
the above decisions, in our considered view, the following general principles
regarding powers of the appellate court while dealing with an appeal against an
order of acquittal emerge: (1)
An appellate court has full power to review, reappreciate and reconsider the
evidence upon which the order of acquittal is founded.
(2)
The Code of Criminal Procedure, 1973 puts no limitation, restriction or
condition on exercise of such power and an appellate court on the evidence
before it may reach its own conclusion, both on questions of fact and of law.
(3)
Various expressions, such as, “substantial and compelling reasons”, “good and
sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring
mistakes”, etc. are not intended to curtail extensive powers of an appellate
court in an appeal against acquittal. Such phraseologies are more in the nature
of “flourishes of language” to emphasise the reluctance of an appellate court to
interfere with acquittal than to curtail the power of the court to review the
evidence and to come to its own conclusion.
(4)
An appellate court, however, must bear in mind that in case of acquittal, there
is double presumption in favour of the accused. Firstly, the presumption of innocence is available to
him under the fundamental principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved guilty by a competent
court of law. Secondly,
the accused having secured his acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened by the trial court.
(5)
If two reasonable conclusions are possible on the basis of the evidence on
record, the appellate court should not disturb the finding of acquittal
recorded by the trial court.”
The same principles were reiterated in number of judgments viz. Jugendra Singh v.
State of Uttar Pradesh (2012)
6 SCC 297, State of Uttar Pradesh v. Ram Sajivan and Others (2010) 1 SCC 529, Bhaskar Ramappa
Madar and others v. State of Karnataka (2009) 11 SCC 690, Chandrappa and others v. State of Karnataka
(2007) 4 SCC 415 and other
judgments.
16. Considering the case in hand, the findings of the trial court cannot
be said to be ‘distorted conclusions’ warranting interference. Based on the
oral evidence of Joginder Singh (PW-2) and Harbhajan Singh (PW-3), the High
Court ought not to have interfered with the order of acquittal and the
conviction of the appellant under Section 18 of the NDPS Act cannot be
sustained.
17. In the result, the conviction of the appellant under Section 18 of
the NDPS Act and the sentence of imprisonment imposed on himis set aside and
this appeal is allowed and the appellant is acquitted of the charge.