MOHINDER SINGH versus THE STATE OF PUNJAB

[2018] 10 S.C.R. 910

[2018] 10 S.C.R.

MOHINDER SINGH

THE STATE OF PUNJAB

(Criminal Appeal No. 2182 of 2010)

BAUGUST 14, 2018

[RANJAN GOGOI, R. BANUMATHI ANDNAVIN SINHA, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985: s.50 –Prosecution case was that the appellant was carrying contrabandCsubstance in bag – On search of bag in presence of DSP, thesubstance in bag was found to be opium of 7.04 kg – Two samplesof 20 gms each were taken and sealed – Case property along withtwo samples deposited in Malkhana and next day produced beforethe Magistrate – Samples parcels sent to FSL and found to beDopium – Acquittal by trial court for non-compliance of s.50 of theAct and on the ground that the order of the Magistrate did not showthat the seal of sample sent to FSL tallied with the seal of thecontraband and, thus evidence regarding such production of caseproperty before the Magistrate was not trustworthy – On appeal,High Court held that recovery of contraband from bag/attacheEwhich the accused was carrying in his hands would not amount tosearch of person and as such s.50 would not apply and further, thecase property parcels of samples and sealed samples were dulyproduced before Magistrate – Based on the said finding, High Courtreversed the order of acquittal and convicted appellant u/s.18 andFsentenced him to undergo ten years imprisonment – On appeal, held:Oral evidence of PW-3 and PW-5 as to the deposit of the contrabandseized from the accused with Malkhana is not corroborated by thedocumentary evidence – In the absence of the order of theMagistrate showing that the contraband seized from the accusedwas produced before the Magistrate, the oral evidence adducedGthat the contraband was produced before the Magistrate cannotform the basis to record the conviction – In an appeal againstacquittal, the High Court will not interfere unless there aresubstantial and compelling reasons to reverse the order of acquittal –Considering the case in hand, the findings of the trial court cannotHbe said to be ‘distorted conclusions’ warranting interference – Based

on the oral evidence of PW-2 and PW-3, the High Court ought notto have interfered with the order of acquittal and the conviction ofthe appellant under s.18 of the Act was not sustainable.

Narcotic Drugs and Psychotropic Substances Act, 1985: s.50 –Personal search – Carrying the contraband substance in the scooter/bag cannot be said to be ‘by the person’ necessitating complianceof s.50 of the Act for personal search.

Allowing the appeal, the Court

HELD: 1. After referring to the oral evidence of PW-2 andPW-3, the trial court in its judgment has recorded the findingthat no order of the Magistrate to prove the production of thecontraband before the Magistrate was available on the file. Afterrecording such observation, the trial court held that the oralevidence regarding production of the case property before theMagistrate was not trustworthy and not acceptable. For provingthe offence under the NDPS Act, it is necessary for theprosecution to establish the quantity of the contraband goodsallegedly seized from the possession of the accused and the bestevidence would be the court records as to the production of thecontraband before the Magistrate and deposit of the same beforethe Malkhana or the document showing destruction of thecontraband. [Paras 11-12] [915-E-F, G-H]

State of H.P. v. Pawan Kumar (2005) 4 SCC 350 : [2005]3 SCR 417; Vijay Jain v. State of Madhya Pradesh(2013) 14 SCC 527 : [2013] 4 SCR 293 – relied on.

2. In an appeal against acquittal, the High Court will notinterfere unless there are substantial and compelling reasons toreverse the order of acquittal. Considering the case in hand, thefindings of the trial court cannot be said to be ‘distortedconclusions’ warranting interference. Based on the oral evidenceof PW-2 and PW-3, the High Court ought not to have interferedwith the order of acquittal and the conviction of the appellantunder Section 18 of the NDPS Act cannot be sustained. [Paras15, 16] [916-H; 917-A; 918-C-D]

Chandrappa and Others v. State of Karnataka (2007)4 SCC 415 : [2007] 2 SCR 630; Jugendra Singh v.State of Uttar Pradesh (2012) 6 SCC 297 : [2012] 6

ASCR 193; State of Uttar Pradesh v. Ram Sajivan andOthers (2010) 1 SCC 529 : [2009] 16 SCR 154;Bhaskar Ramappa Madar and others v. State ofKarnataka (2009) 11 SCC 690 : [2009] 5 SCR 256;Chandrappa and others v. State of Karnataka (2007) 4SCC 415 : [2007] 2 SCR 630 – relied on.B

Case law reference

From the Judgment and Order dated 30.06.2010 of the High Courtof Punjab and Haryana at Chandigarh in Criminal Appeal No. 199-EDBA of 2002.

Harkesh Singh, R. K. Talwar, Chander Shekhar Ashri, Advs. forthe appellant.

Ms. Ranjeeta Rohatgi, Kuldip Singh, Advs. for the respondent.

FThe Judgment of the Court was delivered by

R. BANUMATHI, J. 1. This appeal arises out of the judgmentdated 30.06.2010 passed by the High Court of Punjab and Haryana atChandigarh in Criminal Appeal No.199-DBA of 2002 in and by whichthe High Court reversed the judgment of acquittal of the appellant/accusedGand convicted him under Section 18 of the Narcotic Drugs andPsychotropic Substances Act, 1985 (NDPS Act) and sentenced him toundergo 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 withHother police officials was checking the vehicles on the bridge of Gill

Canal towards the side of village Gill. Meanwhile, at about 7.00-7.30pm, appellant Mohinder Singh came on his scooter No.PB-10B-2413.A signal was given to stop the scooter and the appellant/accused stoppedhis scooter. It was suspected that some contraband substance wasbeing carried in the bag. Appellant/accused was informed of his right ofsearch before Gazetted Officer or 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 foundto be “opium”. On weighment, it was found to be 7 kilos and 40 gms.Two samples from the recovered “opium”, each weighing 20 gms weretaken and sealed separately having monogram ‘JS’ and ‘GS’ and takeninto possession vide recovery memo Ext.-PE. Case property along withtwo samples was deposited with Baldev Singh MHC (PW-5). Next dayi.e. on 01.05.1998, the case property as well as the sample parcels wereproduced before the Area Magistrate who is said to have initialled thecase property and the sample parcels. The sample parcels were sent toForensic Science Laboratory (FSL) and subjected to chemical analysisand the contents were found to be “opium” in FSL report vide Ext.-P1.After completion of the investigation, charge sheet was filed againstappellant under Section 18 of the NDPS Act.

3.To prove the guilt of the accused, the prosecution has examinedConstable Hardev Singh (PW-1), SI Joginder Singh (PW-2), ASIHarbhajan 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 theprosecution evidence and he denied all of them.

4.The trial court acquitted the appellant inter alia on the groundthat there was non-compliance of Section 50 of the NDPS Act. Thetrial court further held that no order of the Magistrate was proved toshow that the case property was produced before the court, was broughtin evidence to show that the seal of the sample sent to FSL tallied withthe seal of the contraband, and it cannot thus be said that the evidenceregarding such production of case property before the Magistrate wastrustworthy. Being aggrieved by the acquittal, the State has preferredappeal 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 bag/attache which the accused was carrying in his hands, would not amount

Ato search of person and as such Section 50 of the NDPS Act will notapply. Based on the evidence of SI Joginder Singh (PW-2) and HarbhajanSingh (PW-3), the High Court held that the case property parcels of thesamples and the samples having the seals of ‘JS’ and ‘GS’ were dulyproduced before the Magistrate and on those findings, the High Courtreversed the order of acquittal and convicted the appellant underBSection 18 of the NDPS Act and sentenced him to undergo ten yearsimprisonment. Being aggrieved, the appellant/accused has preferredthis appeal.

6.Mr. Harkesh Singh, learned counsel for the appellant inter-alia submitted that since the contraband alleged to have been seizedCfrom the accused was not produced before the trial court, conviction ofthe appellant cannot be sustained. Learned counsel for the appellantplaced reliance upon Ashok alias Dangra Jaiswal v. State of MadhyaPradesh (2011) 5 SCC 123 to contend that where the narcotic drug orthe psychotropic substance seized from the possession of the accused isDnot produced before the Magistrate and when there is no evidence toconnect the forensic science report with the drug or the substance thatwas seized from the possession of the accused in such case theconviction of the appellant/accused is not sustainable.

7.Learned counsel for the State has submitted that from theEoral evidence of SI Joginder Singh (PW-2) and ASI Harbhajan Singh(PW-3), the production of the contraband seized from the accused beforethe court has been proved by the prosecution. It was submitted that theevidence and materials on record amply proves the production of thecontraband along with the sample packets before the Magistrate. It wassubmitted that the trial court was not right in acquitting the accused andFthe High court rightly set aside the acquittal and the impugned judgmentdoes not warrant any interference.

8.We have considered the submissions and perused the impugnedjudgment, evidence and other materials on record. We have also takenpains to look into the original records that were called for from the trialGcourt.

9.On behalf of the appellant, contention was raised as to thenon-compliance of Section 50 of the NDPS Act to submit that thesafeguards stipulated under Section 50 were not complied with. In thepresent case, the appellant was carrying the contraband-about seven

Kilos of “opium” in the bag which he was carrying in the scooter. Carryingthe contraband in the scooter/bag cannot be said to be ‘by the person’necessitating compliance of Section 50 of the NDPS Act for personalsearch. Reference in this regard can be made to the decision in State ofH.P. v. Pawan Kumar (2005) 4 SCC 350.

10. So far as the contention regarding production of the contrabandseized from the accused, in his evidence, Harbhajan Singh (PW-3) statedthat on 01.05.1998, he produced the sample parcels and the case propertyparcels with the seal and the sample seals before the Judicial Magistrate,Ludhiana and the Magistrate has recorded the seals tallied with thespecimen impression. Harbhajan Singh (PW-3) further stated that afterreturn of the samples and the parcels from the court, the same werelodged 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 ofthe contraband in the Malkhana, but Baldev Singh (PW-5) has notproduced Register No.19 maintained in the Malkhana to show the relevantentry 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) asto the deposit of the contraband seized from the accused with Malkhanais not corroborated by the documentary evidence namely the entry inRegister 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 judgmenthas recorded the finding that no order of the Magistrate to prove theproduction of the contraband before the Magistrate was available on thefile. After recording such observation, the trial court held that the oralevidence regarding production of the case property before the Magistratewas not trustworthy and not acceptable. In the absence of the order ofthe Magistrate showing that the contraband seized from the accusedwas produced before the Magistrate, the oral evidence adduced that thecontraband was produced before the Magistrate cannot form the basisto record the conviction.

12. For proving the offence under the NDPS Act, it is necessaryfor the prosecution to establish that the quantity of the contraband goodsallegedly seized from the possession of the accused and the best evidencewould be the court records as to the production of the contraband beforethe Magistrate and deposit of the same before the Malkhana or thedocument showing destruction of the contraband.

A13. In Vijay Jain v. State of Madhya Pradesh (2013) 14 SCC527, this Court reiterated the necessity of production of contrabandsubstances seized from the accused before the trial court to establishthat the contraband substances seized from the accused tallied with thesamples sent to the FSL. It was held that mere oral evidence to establishseizure of contraband substances from the accused is not sufficient. ItBwas held as under:-

“10. On the other hand, on reading of this Court’s judgment inJitendra v. State of M.P. (2004) 10 SCC 562, we find that thisCourt has taken view that in the trial for an offence under theNDPS Act, it was necessary for the prosecution to establish byCcogent evidence that the alleged quantities of the contrabandgoods were seized from the possession of the accused and thebest evidence to prove this fact is to produce during the trial, theseized materials as material objects and where the contrabandmaterials alleged to have been seized are not produced and thereDis no explanation for the failure to produce the contrabandmaterials by the prosecution, mere oral evidence that the materialswere seized from the accused would not be sufficient to makeout an offence under the NDPS Act particularly when the panchwitnesses have turned hostile. Again, in Ashok v. State of M.P.(2011) 5 SCC 123, this Court found that the alleged narcoticEpowder seized from the possession of the accused was notproduced before the trial court as material exhibit and there wasno explanation for its non-production and this Court held thatthere was therefore no evidence to connect the forensic reportwith the substance that was seized from the possession of theFappellant.”

14. The High Court appears to have gone by the oral evidence ofJoginder Singh (PW-2) and Harbhajan Singh (PW-3) that the contrabandallegedly seized from the accused was produced before the Magistrate.When the trial court which is in possession of the case records recordedGa finding that there is no order of the Magistrate showing the productionof the contraband before the court and acquitted the accused on thatbasis, in our view, the High Court ought not to have interfered with thesaid order of acquittal.

15. In an appeal against acquittal, the High Court will not interfereHunless there are substantial and compelling reasons to reverse the order

of acquittal. The mere fact that on reappreciation of evidence the appellatecourt is inclined to arrive at conclusion which is at variance with thetrial court, the same cannot be the reason for interference with the orderof acquittal. After referring to various judgments in Chandrappa andothers v. State of Karnataka (2007) 4 SCC 415, this Court summarisedthe general principles regarding the powers of the appellate court whiledealing with an appeal against the order of acquittal and held as under:-

“42. From the above decisions, in our considered view, thefollowing general principles regarding powers of the appellatecourt while dealing with an appeal against an order of acquittalemerge:

(1) An appellate court has full power to review,reappreciate and reconsider the evidence upon which the orderof acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation,restriction or condition on exercise of such power and anappellate court on the evidence before it may reach its ownconclusion, both on questions of fact and of law.

(3) Various expressions, such as, “substantial andcompelling reasons”, “good and sufficient grounds”, “verystrong circumstances”, “distorted conclusions”, “glaringmistakes”, etc. are not intended to curtail extensive powers ofan appellate court in an appeal against acquittal. Suchphraseologies are more in the nature of “flourishes of language”to emphasise the reluctance of an appellate court to interferewith acquittal than to curtail the power of the court to reviewthe evidence and to come to its own conclusion.(4) An appellate court, however, must bear in mind that incase of acquittal, there is double presumption in favour of theaccused. Firstly, the presumption of innocence is available tohim under the fundamental principle of criminal jurisprudencethat every person shall be presumed to be innocent unless heis proved guilty by competent court of law. Secondly, theaccused having secured his acquittal, the presumption of hisinnocence is further reinforced, reaffirmed and strengthenedby the trial court.

[2018] 10 S.C.R.

A(5) If two reasonable conclusions are possible on the basisof the evidence on record, the appellate court should not disturbthe finding of acquittal recorded by the trial court.”

The same principles were reiterated in number of judgments viz. JugendraSingh v. State of Uttar Pradesh (2012) 6 SCC 297, State of UttarBPradesh v. Ram Sajivan and Others (2010) 1 SCC 529, BhaskarRamappa Madar and others v. State of Karnataka (2009) 11 SCC690, Chandrappa and others v. State of Karnataka (2007) 4 SCC415 and other judgments.

16. Considering the case in hand, the findings of the trial courtCcannot be said to be ‘distorted conclusions’ warranting interference.Based on the oral evidence of Joginder Singh (PW-2) and HarbhajanSingh (PW-3), the High Court ought not to have interfered with theorder of acquittal and the conviction of the appellant under Section 18 ofthe NDPS Act cannot be sustained.

D17. In the result, the conviction of the appellant under Section 18of the NDPS Act and the sentence of imprisonment imposed on him isset aside and this appeal is allowed and the appellant is acquitted of thecharge.

Devika Gujral Appeal allowed.