STATE OF RAJASTHAN versus SAHI RAM

[2019] 14 S.C.R. 1117

STATE OF RAJASTHAN

SAHI RAM

(Criminal Appeal No.1497 of 2019)

SEPTEMBER 27, 2019

[UDAY UMESH LALIT AND VINEET SARAN, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985:

s.8 r/w s.15 – Conviction under – By Special Court – Inappeal, High Court acquitted the accused holding that failure toexhibit the entire contraband material before the Court was fataland hence evidence regarding alleged seizure was liable to bediscarded – Appeal to Supreme Court – Held: In the facts of thepresent case, seizure of the contraband was conclusively proved –If the seizure of the material is otherwise proved on record and isnot even doubted or disputed, entire contraband need not be placedbefore the Court – High Court erred in extending benefit ofacquittal to the accused – Conviction order restored.

Allowing the appeal, the Court

HELD: 1. In the present matter, the evidence of PW15shows that from and out of 7 bags of poppy husk, samplesweighing about 500 grams were taken out of each bag. Out ofthese 3500 grams thus taken out, two samples of 500 grams wereindependently sealed while rest 2500 grams were also sealed ina separate pouch. These samples were marked A, and Crespectively. The bags were also independently sealed and takenin custody and Exbt-5 seizure memo which recorded all thesefacts was also signed by the accused. At no stage incross-examination, even suggestion was put to the witness thateither the signatures of the accused were taken by fraud, coer-cion or mis-representation or that the signatures were not of theaccused or that they did not understand the purport of theseizure memo. It would therefore be difficult to even suggestthat the seizure of contraband weighing 223 kgs was not provedby the prosecution. Rather this fact stood conclusively proven.[Para 16] [1128-G-H; 1129-A-B]

A2. If the seizure of the material is otherwise proved onrecord and is not even doubted or disputed, the entire contra-band material need not be placed before this Court. If the sei-zure is otherwise not in doubt, there is no requirement that theentire material ought to be produced before the Court. At times,the material could be so bulky, for instance as in the presentBmatter when those 7 bags weighed 223 kgs that it may not bepossible and feasible to produce the entire bulk before the Court.If the seizure is otherwise proved, what is required to be provedis the fact that the samples taken from and out of the contrabandmaterial were kept intact, that when the samples were submittedCfor forensic examination the seals were intact, that the report ofthe forensic experts shows the potency, nature and quality of thecontraband material and that based on such material, the essen-tial ingredients constituting an offence are made out.[Para 17] [1129-C-D]

DNoor Aga v. State of Punjab & Another(2008) 16 SCC417: [2008] 10 SCR 379;Jitendra & Another v. Stateof Madhya Pradesh(2004) 10 SCC 562 :[2003] 3Suppl. SCR 918; Ashok alias Dangra Jaiswal v. Stateof Madhya Pradesh(2011) 5 SCC 123 : [2011] 4 SCR253; Vijay Jain v. State of Madhya Pradesh(2013) 14ESCC 527 : [2013] 4 SCR 293;Vijay Pandey v. State ofUttar Pradesh AIR 2019 SC 3569 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 1497 of 2019

From the Judgment and Order dated 07.04.2016 of the High Courtof Judicature for Rajasthan at Jodhpur in Criminal Appeal No. 774 of2015

Dr. Manish Singhvi, Sr. Adv., Satyendra Kr., Milind Kumar, Advs.for the Appellant.

Saurabh Ajay Gupta, Adv. for the Respondent.

The Judgment of the Court was delivered by

UDAY UMESH LALIT, J.

1. Leave granted.

2. This appeal challenges the final order dated 07.04.2016 passedby the High Court[1] in S.B. Criminal Appeal No.774 of 2015.

3. On receiving source information on 20.06.2006 that in whitecoloured Tavera vehicle bearing registration No.RJ27-TC-0323 threepersons were coming from Madhya Pradesh along with contrabandmaterial namely poppy straw and were proceeding towards Jodhpur, theinformation was reduced to writing and copy was immediatelyforwarded to the superior officers in terms of requirements of Section42 of the Narcotic Drugs and Psychotropic Substances Act, 1985(hereinafter referred to as “the NDPS Act”).

4. team was thereafter constituted which reached the Railwaycrossing near petrol pump Nimbahera. Two private persons namedKishan Lal and Chaman Lal were asked to associate as Panchas. At9.40 AM, the vehicle was seen coming from Neemuch and was stopped.The vehicle was being driven by the respondent while the other twooccupants were identified as Sohan and Kanhaiya Lal. After followingmandatory requirements under the provisions of the NDPS Act, thevehicle was searched, during which seven bags of poppy straw, thegross weight being 223 kgs were found behind the driver’s seat. Fromevery bag two samples of 500 grams were taken and two such sampleswere sealed. Remaining quantity of 2500 grams was put in separatepouch. The bags weighing about 223 kgs were also sealed. Punchnamato that effect was recorded which bore the signatures of the respondentand other persons.

1The High Court of Judicature for Rajasthan at Jodhpur

A5. After completing investigation, charge-sheet was filed againstthe respondent and against said Sohan and Kanhaiya Lal for the offencepunishable under Section 8 read with 15 of the NDPS Act while theinvestigation was kept pending against one Shyam Sunder, his wife Vimla,the owners of the vehicle and one Pappu Raja. By Order dated25.05.2015, said Sohan and Kanhaiya Lal were marked as abscondingBaccused in the trial.

6. The prosecution examined eighteen witnesses in support of itscase. PW15, Surender Singh, from Police Station Nimbahera hadentered the information in Rojnamcha and had intimated the superiorofficials. As regards the recovery of the contraband material he stated:-

“…… Behind the driver’s seat there were white plastic bags whichwere tied with strings, which were opened with the help of thepolice team and the witnesses, and smelled, and then everybodytold it to be poppy husk. They were asked if they had any validlicense for this poppy husk and they had told that they do not haveany license. Their above act of all the three people was found tobe punishable offence under section 8/15 NDPS Act due to whichthe bags were taken out of the vehicle, all the bags were weighed,then, in the 7 bags 223 kg poppy husk was found 500 gm poppyhusk was taken out from every bag and was weighed togetherand it came out to be 3500 gm. Out of this two samples of 500 gmeach were put in plastic packets and were then put in white clothbags and seal stamped. The sample was marked and the controlsample was marked B. the remaining 2500 gm sample was sealstamped and given mark C.”

“…..All the three accused Sahi Ram, Sohan, Kanhaiya Lal weregiven notices under section 52 and were arrested. I recognize allthe three accused, who are today not present in the court. Thenotice given to witness Kishan is Exibit P-1, which bears mysignatures from to F, and the signatures of Kishan are from Cto D, the notice given to Chaman is Exibit P-17, which bears mysignatures from to F, and the signatures of Chaman are from Cto D. the notice given to accused Sahi Ram under section 50 isExibit P-2, the notice given to accused Sohan under section 50 isExibit P-3, the notice given to accused Kanhaiya Lal under section

50 is Exibit P-4, which bears my signatures from to F, and thesignatures of accused are from to H. the memo of seizure ofpoppy husk is Exibit P-5, which bears my signatures from to F,and the signatures of accused are from to H, I to J, K to L.”

7. After considering the relevant evidence on record, the SpecialJudge, NDPS Case No.2, Chittorgarh vide judgment dated 01.08.2015found that the case was established against the respondent herein andhe was convicted for offence punishable under Section 8 read with 15of the NDPS Act. By separate order of even date, the respondentwas sentenced to suffer rigorous imprisonment for fifteen years and topay fine of Rs.1,50,000/-; in default whereof he was directed to sufferfurther rigorous imprisonment for one year. It was observed by the trialcourt:-

“….. In the present case, charge of keeping total 223 kilogramsof illegal Dodachura in his conscious possession and transportingit in Tavera car bearing No. RJ27-TC-0323 has been provedagainst the accused Sahi Ram in the present case, in regard towhich he had no valid license to keep the same in his possessionand quantity of seized illegal Dodachura is more than commercialquantity.”

8. The respondent being aggrieved filed S.B. Criminal AppealNo.774 of 2015 before the High Court. Only one ground was urged insupport of the appeal that the Muddamal i.e., contraband material inquestion was not produced before the Court and that the evidence onrecord did not support the case about the seizure and recovery of 223kgs. of contraband. The High Court accepted the submission andconcluded that only two samples- packets and one bag of poppy strawweighing 2.5 kg were produced and exhibited while the entire contrabandmaterial was not produced and exhibited. Relying on the decisions ofthis Court in Noor Aga v. State of Punjab & Another[2], Jitendra &Another v. State of Madhya Pradesh[3], Ashok alias Dangra Jaiswalv. State of Madhya Pradesh[4]and Vijay Jain v. State of MadhyaPradesh[5] it was observed that failure to exhibit Muddamal and

2(2008) 16 SCC 417

3(2004) 10 SCC 562

4(2011) 5 SCC 123

5(2013) 14 SCC 527

Acontraband material was fatal to the case of prosecution. The HighCourt observed:-

“….Non-exhibition of the Muddamal in the court leads to theirrefutable conclusion that the prosecution failed to lead primaryevidence of the seizure and thus, the entire evidence of theBprosecution regarding the alleged recovery has to be discarded.

Since in the case at hand, the prosecution failed to exhibit theMuddamal in the court, the entire evidence of the prosecutionregarding alleged seizure has to be discarded.”

With the aforesaid view, the High Court allowed the appeal, setCaside the Judgment and Order dated 01.08.2015 passed by the SpecialJudge and acquitted the respondent of the charge levelled against him.

9. We heard Dr. Manish Singhvi, learned Senior Advocate for theState and Mr. Saurabh Ajay Gupta, learned Advocate for the respondent.

10. At the outset, it must be considered whether the cases reliedDupon by the High Court state in unequivocal terms that in case of failureto produce the contraband material before the Court, the case of theprosecution is required to be discarded or not.

11. In Jitendra & Another v. State of Madhya Pradesh[3],it wasundoubtedly submitted on behalf of the accused that the material objectsEwere not at all produced at the trial. The submission in that behalf wasrecorded in para No.4 as under:

“4. The learned counsel for the appellants strongly urged thatthe High Court has completely missed the crucial issue that wasurged on behalf of the accused. He pointed out that this was aFstrange case where the material objects viz. one kilogram charasalleged to have been seized from the custody of Jitendra, and onekilogram ganja alleged to have been seized from the possessionof Jitendra’s mother, accused Sheela, were not at all produced atthe trial.”

It was further submitted that there was no material whatsoeverto prove that the samples that were dispatched to the FSL were actuallydrawn from the seized material. The matter was considered by thisCourt 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 bycogent evidence that the alleged quantities of charas and ganjawere seized from the possession of the accused. The best evidencewould have been the seized materials which ought to have beenproduced during the trial and marked as material objects. There isno explanation for this failure to produce them. Mere oral evidenceas to their features and production of panchnama does notdischarge the heavy burden which lies on the prosecution,particularly where the offence is punishable with stringentsentence as under the NDPS Act. In this case, we notice thatpanchas have turned hostile so the panchnama is nothing but adocument written by the police officer concerned. The suggestionmade by the defence in the cross-examination is worthy of notice.It was suggested to the prosecution witnesses that the landlady ofthe house in collusion with the police had lodged false case onlyfor evicting the accused from the house in which they were living.Finally, we notice that the investigating officer was also notexamined. Against this background, to say that, despite the panchwitnesses having turned hostile, the non-examination of theinvestigating officer and non-production of the seized drugs, theconviction under the NDPS Act can still be sustained, is far-fetched.

7. The learned counsel for the appellants brought to our noticetwo more facts. The High Court seems to have relied on copyof the letter dated 14-8-1999 written by the Superintendent ofPolice, Datia to the Director, State Forensic Laboratory, Sagarand placed reliance thereupon, although this was not documentproduced during the trial and proved according to law. The HighCourt commented that the prosecution had failed to exhibit theletter during the trial and that the trial court was not vigilant in thisrespect. In the absence of anyone affirming the correctness ofthe contents of the letter, the High Court has placed reliance onthe contents of the letter merely on the ground that the saiddocument was mentioned at Serial No. 9 in the charge-sheet, andpresumably its copy must have been supplied to the accused. Thisis another lacuna, noticeable in the judgment of the High Court.

8. The learned counsel for the appellant drew our attention to thefinal report dated 3-10-1999 submitted under Section 173 CrPC,from the original file. We notice something peculiar here. In thefinal report, in column 16, headed “Result of laboratory analysis”,it is stated “report of FSL, Sagar is awaited”. Interestingly, thereport of the State Forensic Laboratory, Sagar is dated 30-8-1999(Ext. P-17) certifying that the packets ‘A’, ‘B’ and ‘C’ sent to thelaboratory contained charas and ganja. It appears strange to usthat the final report submitted under Section 173 CrPC on 3-10-1999, on which the charge-sheet was based, was submitted bythe police officer concerned either without being aware of or withoutreading the report of the Forensic Science Laboratory. Or else,the Forensic Science Laboratory’s report is ante-dated. This isanother circumstance which militates strongly against theprosecution.

9.Taking the cumulative effect of all the circumstances, it appearsto us that the material placed on record by the prosecution doesnot bring home the charge beyond reasonable doubt. We are ofthe view that upon the material placed on record it would be unsafeto convict the appellants. They are certainly entitled to the benefitof doubt.” (emphasis added)

12. In Ashokalias Dangra Jaiswal v. State of Madhya Pradesh[4],it was observed as under:-

“9. The seizure witnesses turning hostile may not be verysignificant, as it is not an uncommon phenomenon in criminal trials,particularly in cases relating to NDPS but there are some othercircumstances which, when taken together, make it very unsafeto uphold the appellant’s conviction.

10. The seizure of the alleged narcotic substance is shown tohave been made on 8-3-2005, at 11.45 in the evening. The samplestaken from the seized substance were sent to the FSL on10-3-2005, along with the draft, Ext. P-31. The samples sent forforensic examination were, however, not deposited at the FSL onthat date but those came back to the police station on 12-3-2005

due to some mistake in the draft or with some query in respect ofthe draft. The samples were sent back to the FSL on 14-3-2005,after necessary corrections in the draft and/or giving reply to thequery and on that date the samples were accepted at the FSL.From the time of the seizure in the late evening of 8-3-2005, tilltheir deposit in the FSL on 14-3-2005, it is not clear where thesamples were laid or were handled by how many people and inwhat ways.

11. The FSL report came on 21-3-2005, and on that basis thepolice submitted charge-sheet against the accused on 31-3-2005,but the alleged narcotic substance that was seized from theaccused, including the appellant was deposited in the malkhanaabout two months later on 28-5-2005. There is no explanationwhere the seized substance was kept in the meanwhile.

12. Last but not the least, the alleged narcotic powder seizedfrom the possession of the accused, including the appellant wasnever produced before the trial court as material exhibit andonce again there is no explanation for its non-production. Thereis, thus, no evidence to connect the forensic report with thesubstance that was seized from the possession of the appellant orthe other accused.”

Relying on the decision of this Court in Jitendra[3], the benefit ofdoubt was given and the accused was acquitted.

13. In Vijay Jain v. State of Madhya Pradesh[5], it was submittedon behalf of the accused, as is evident from para 4 of the decision, thatthere was non-production of the contraband goods. This Court dealtwith the matter as under:-

“9. Para 96 of the judgment of this Court in Noor Aga case2onwhich the learned counsel for the State very strongly relies isquoted hereinbelow: (SCC p. 464)

“96. Last but not the least, physical evidence relating to threesamples taken from the bulk amount of heroin was also notproduced. Even if it is accepted for the sake of argument that

the bulk quantity was destroyed, the samples were essential tobe produced and proved as primary evidence for the purposeof establishing the fact of recovery of heroin as envisaged underSection 52-A of the Act.”

Thus in para 96 of the judgment in Noor Aga case2this Court hasheld that the prosecution must in any case produce the sampleseven where the bulk quantity is said to have been destroyed. Theobservations of this Court in the aforesaid paragraph of thejudgment do not say anything about the consequence of non-production of the contraband goods before the court in aprosecution under the NDPSAct. (Emphasis added)

10. On the other hand, on reading of this Court’s judgment inJitendra case[3], we find that this Court has taken view that inthe trial for an offence under the NDPS Act, it was necessary forthe prosecution to establish by cogent evidence that the allegedquantities of the contraband goods were seized from the possessionof the accused and the best evidence to prove this fact is to produceduring the trial, the seized materials as material objects and wherethe contraband materials alleged to have been seized are notproduced and there is no explanation for the failure to producethe contraband materials by the prosecution, mere oral evidencethat the materials were seized from the accused would not besufficient to make out an offence under the NDPS Act particularlywhen the panch witnesses have turned hostile. Again, in Ashok4this Court found that the alleged narcotic powder seized from thepossession of the accused was not produced before the trial courtas material exhibit and there was no explanation for its non-production and this Court held that there was therefore no evidenceto connect the forensic report with the substance that was seizedfrom the possession of the appellant.

12. We are thus of the view that as the prosecution has notproduced the brown sugar before the Court and has also not offeredany explanation for non-production of the brown sugar alleged tohave been seized from the appellants and as the evidence of the

witnesses (PW 2 and PW 3) to the seizure of the materials doesnot establish the seizure of the brown sugar from the possessionof the appellants, the judgment of the trial court convicting theappellants and the judgment of the High Court maintaining theconviction are not sustainable.” (emphasis added)

14. In recent decision dated 30[th] July, 2019 of this Court in VijayPandey v. State of Uttar Pradesh[6]the benefit was extended on theground that there was no co-relation between the seized samples andone that was tested. Reliance was placed on the observations of thisCourt in Vijay Jain[5]which inter alia stated that there was no evidenceto connect the forensic report that the substance that was seized fromthe possession of the accused. The relevant observations are to befound in para 8 of the decision:

“8. The failure of the prosecution in the present case to relatethe seized sample with that seized from the appellant makes thecase no different from failure to produce the seized sample itself.In the circumstances the mere production of laboratory reportthat the samples tested was narcotics cannot be conclusive proofby itself. The sample seized and that tested have to be co-related.The observations in Vijay Jain[5], as follows are consideredrelevant:

10. On the other hand, on reading of this Court’s judgment inJitendra case[3], we find that this Court has taken view that inthe trial for an offence under the NDPS Act, it was necessary forthe prosecution to establish by cogent evidence that the allegedquantities of the contraband goods were seized from the possessionof the accused and the best evidence to prove this fact is to produceduring the trial, the seized materials as material objects and wherethe contraband materials alleged to have been seized are notproduced and there is no explanation for the failure to producethe contraband materials by the prosecution, mere oral evidencethat the materials were seized from the accused would not besufficient to make out an offence under the NDPS Act particularlywhen the panch witnesses have turned hostile. Again, in Ashok[4]

1128SUPREME COURT REPORTS

Athis Court found that the alleged narcotic powder seized from thepossession of the accused was not produced before the trial courtas material exhibit and there was no explanation for its non-production and this Court held that there was therefore no evidenceto connect the forensic report with the substance that was seizedfrom the possession of the appellant.” (emphasis added)B

15. It is true that in all the aforesaid cases submission wasadvanced on behalf of the accused that failure to produce contrabandmaterial before the Court ought to result in acquittal of the accused.However in none of the aforesaid cases said submission singularlyCweighed with this Court to extend benefit of acquittal only on that ground.As is clear from decision of this Court in Jitendra[3], apart from theaforesaid submission other facets of the matter also weighed with theCourt which is evident from paras 7 to 9 of the decision. Similarly inAshok[4], the fact that there was no explanation where the seized substancewas kept (para 11) and the further fact that there was no evidence toDconnect the forensic report with the substance that was seized, (para12) were also relied upon while extending benefit of doubt in favour ofthe accused. Similarly, in Vijay Jain[5], the fact that the evidence onrecord did not establish that the material was seized from the appellants,was one of the relevant circumstances. In the latest decision of thisECourt in Vijay Pandey[6], again the fact that there was no evidence toconnect the forensic report with the substance that was seized was alsorelied upon to extend the benefit of acquittal.

It is thus clear that in none of the decisions of this Court, non-production of the contraband material before the Court has singularlyFbeen found to be sufficient to grant the benefit of acquittal.

16. Turning to the facts in the present matter, the evidence ofPW15 Surender Singh shows that from and out of 7 bags of poppy husk,samples weighing about 500 grams were taken out of each bag. Out ofthese 3500 grams thus taken out, two samples of 500 grams wereGindependently sealed while rest 2500 grams were also sealed in separatepouch. These samples were marked A, and respectively. The bagswere also independently sealed and taken in custody and Exbt-5 seizurememo which recorded all these facts was also signed by the accused.We have gone through the cross-examination of the witness. At nostage even suggestion was put to the witness that either the signaturesof the accused were taken by fraud, coercion or mis-representation orthat the signatures were not of the accused or that they did not understandthe purport of the seizure memo. It would therefore be difficult to evensuggest that the seizure of contraband weighing 223 kgs was not provedby the prosecution. In our view this fact stood conclusively proven.

17. If the seizure of the material is otherwise proved on recordand is not even doubted or disputed the entire contraband material neednot be placed before this Court. If the seizure is otherwise not in doubt,there is no requirement that the entire material ought to be producedbefore the Court. At times the material could be so bulky, for instanceas in the present material when those 7 bags weighed 223 kgs that itmay not be possible and feasible to produce the entire bulk before theCourt. If the seizure is otherwise proved, what is required to be provedis the fact that the samples taken from and out of the contraband materialwere kept intact, that when the samples were submitted for forensicexamination the seals were intact, that the report of the forensic expertsshows the potency, nature and quality of the contraband material andthat based on such material, the essential ingredients constituting anoffence are made out.

18. In the aforesaid premises the conclusion drawn by the HighCourt was completely unsustainable and the High Court erred in extendingthe benefit of acquittal to the respondent. We, therefore, allow thisappeal, set aside the view taken by the High Court and restore the orderof conviction as recorded by the trial court against the respondent in itsjudgment and order dated 01.08.2015. The minimum sentence ofimprisonment for the offence punishable under Section 8 read with 15 ofthe NDPS Act is 10 years.

Considering the facts on record, in our view the appropriatesentence would be Rigorous Imprisonment for 10 years as substantivesentence. We order accordingly, keeping the other parts of sentencenamely sentence of fine and sentence in default of payment of fine asordered by the trial court, intact and unchanged.

1130SUPREME COURT REPORTS

[2019] 14 S.C.R.

A19. The appeal stands allowed in aforesaid terms.

20. We direct the respondent to surrender before the concernedPolice Station within seven days from today, failing which, the respondentshall immediately be taken in custody by the concerned police station.

copy of this order of this Court shall be sent to the concernedCJM as well as the Police Station for intimation and compliance.

Kalpana K. Tripathy

Appeal allowed.