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2020 (3) TMI 139
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....tercepted them. The bag was suspected to contain narcotic items. The accused were informed that if they so desired, they could have search of the bag in the presence of a Gazetted Officer or Magistrate. The appellant desired search by a Gazetted Officer. The DSP came to the spot. On his directions, the search was carried out. The bag contained on weighment 6 kilograms 300 grams of opium. Samples were taken. Thereafter, the formal FIR was registered. On receipt of the FSL report and completing investigation, the charge-sheet was filed. Prosecution examined 8 witnesses. The appellant denied incriminating circumstances, in the questioning held under Section 313 of the Code of Criminal Procedure. As noticed earlier, the High Court has affirmed the appellant's conviction. 3. We have heard learned Counsel for the appellant. THE CONTENTIONS OF THE APPELLANT 4. It is firstly pointed out that Shri Om Parkash, DSP - Gazetted Officer, (in whose presence, the search was alleged by the prosecution was conducted) was present at the same time in respect of another case. In other words, he would submit that in connection with this case in his testimony, he has stated that he reached the spot....
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....es has come to rely on the decision by the Bench of two learned Judges in the judgment in SK. Raju alias Abdul Haque alias Jagga v. State of West Bengal (2018) 9 SCC 708. 8. The last contention by the learned Counsel for the appellant is that the prosecution has not associated any independent witness in support of its case. He points out by referring to the judgment itself that there were witnesses available but still no witnesses other than the official witnesses have been enlisted in support of the prosecution case. 9. Per contra, learned Counsel for the State would submit that the time of arrival of Sh. Om Parkash, Gazetted Officer (DSP) has not been questioned. He further pointed out that the Court must bear in mind the lapse of time from the date of incident to the time of examination of the witness. Discrepancy in the timing should not be allowed to discredit the testimony of the witness. Still further, he submits that this is also a case where contraband articles were recovered from within the bag carried by the accused. For carrying out search of a bag as distinct from the person of the accused, there is no requirement to comply with Section 50. As regards, the contenti....
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.... to the DSP was sent telephonically by about 01:05 P.M. He does not remember from the name of the shop from which the telephone call was made. The DSP/Gazetted Officer was present in the office at that time. The DSP came at about 01:20 P.M. He remained at the spot till 03.00 P.M. 13. The case of the appellant is based on the following testimony which was given by the very same, DSP in another case, which has been marked in the Trial Court. In the said case (viz., State v. Heera Lal), he states, inter alia, as follows: On 10.04.2004, he was posted as DSP Head Quarters, Panipat. He was present in his office at about 12 Noon. He deposed to have received a telephone call from a police officer that notice under Section 50 has been served and the person apprehended in the said case opted to have a search before a Gazetted Officer. He reached the spot at Jattal Road, near railway crossing at 8, Marla, Panipat. What is of relevance is that, he stated in his cross-examination that he remained at the spot upto 02:30 P.M. He reached the spot or place of occurrence at about 12:20 PM. The distance to the spot from his office was stated to be 2.5 km. 14. Thus, on the one hand, in this case, ....
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....er Singh (supra), this Court elaborately considered the matter with reference to the applicability of Section 50 in a case where there is a personal search also. 20. This was the case where 7 bags of poppy husk each weighing 34 kg. were found from the vehicle. A personal search of the accused was undertaken after their arrest which did not lead to any recovery of contraband. The High Court found violation of Section 50 as the personal search of the accused was not conducted before the Magistrate/Gazetted Officer and set aside the conviction of the respondent. This Court, in Baljinder Singh (supra), went on to consider the law laid down by the Constitution Bench in Baldev Singh (supra) and, inter alia, held as follows: "16. The conclusion (3) as recorded by the Constitution Bench in para 57 of its judgment in Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172: 1999 SCC (Cri) 1080] clearly states that the conviction may not be based "only" on the basis of possession of an illicit article recovered from personal search in violation of the requirements under Section 50 of the Act, but if there be other evidence on record, such material can certainly be looked into. ....
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....endra (supra). In the said case, it is necessary to notice certain facts. There were panch witnesses for the recovery examined by the prosecution. They turned hostile. Apart from the prosecution witnesses PW7, PW8 and PW6, there was found no independent witness regarding recovery. It is worthwhile to set out paragraph 6. It reads as under: "6. In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the police officer concerned. The suggestion made by the defence in the c....
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....h the substance that was seized from the possession of the appellant or the other accused (see paragraph 12). It was in these circumstances the Court drew support from the judgment of this Court in Jitendra (supra). The appellant has not been able to demonstrate in the facts of this case any facts which could be likened to the facts stated in paragraphs 10 and 11. At least nothing was urged by the learned Counsel for the appellant on these lines. 25. Next judgment to be noticed is Vijay Jain v. State of Madhya Pradesh (2013) 14 SCC 527. The first feature we notice is that the contention about the contraband not being produced was raised before the trial court (see paragraph 5). It was a case where a suitcase was produced as containing the alleged contraband. In regard to the suitcase, the evidence of PW11 was elaborately considered. It was found that the only evidence before the Court was that in the suitcase there was only a big pack wrapped in cloth and cloth was torn and there was blue colour polythene in which there were clothes. The evidence of PW11 did not reveal any brown sugar being found in the suitcase. No doubt, the Court referred to two samples being prepared. Then th....
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....entary 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." 26. Finally, it is necessary also to refer to paragraph 12 regarding the observation made therein. It would assume relevance, which reads as follows: "12. For proving the offence under the NDPS Act, it is necessary for the prosecution to establish 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 producti....
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....pt (para 11) and the further fact that there was no evidence to connect the forensic report with the substance that was seized, (para 12) were also relied upon while extending benefit of doubt in favour of the accused. Similarly, in Vijay Jain [Vijay Jain v. State of M.P., (2013) 14 SCC 527 : (2014) 4 SCC (Cri) 276] , the fact that the evidence on record did not establish that the material was seized from the appellants, was one of the relevant circumstances. In the latest decision of this Court in Vijay Pandey [Vijay Pandey v. State of U.P., (2019) 18 SCC 215 : 2019 SCC Online SC 942] , again the fact that there was no evidence to connect the forensic report with the substance that was seized was also relied upon to extend the benefit of acquittal. 16. It is thus clear that in none of the decisions of this Court, nonproduction of the contraband material before the court has singularly been found to be sufficient to grant the benefit of acquittal. xxx xxx xxx xxx 18. If the seizure of the material is otherwise proved on record and is not even doubted or disputed, the entire contraband material need not be placed before the court. If the seizure is otherwise not in doubt, t....