VIJAY PANDEY versus STATE OF UTTAR PRADESH

[2019] 10 S.C.R. 774

[2019] 10 S.C.R.

VIJAY PANDEY

STATE OF UTTAR PRADESH

(Criminal Appeal No. 1143 of 2019)

BJULY 30, 2019

[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985 – ss.8, 15 – Prosecution case that appellant was carrying 10 kgs. ofopium – Appellant contended that he was falsely implicated – TrialCCourt convicted appellant u/ss. 8, 15 of NDPS Act – High Courtupheld the conviction of the accused – On appeal, held: Noindependent witness from the locality was included in theinvestigation and all the witnesses were police officials – There wasno explanation for the non-availability of any independent witnessDin residential locality – Further, though the Laboratory report ofthe seized sample was obtained, but the identity of the sample seizedfrom the appellant was not conclusively established – In thecircumstances, mere production of laboratory report that the sampletested was narcotics cannot be conclusive proof by itself – Thesample seized and that tested have to be co-related – Thus, theEconviction by the courts below unsustainable and accordingly setaside.

Allowing the appeal, the Court

HELD : 1. The seizure was made in the early morning atFthe door step of the appellant. It is difficult to believe that in arural residential locality, the police were unable to find singleindependent witness. No name of any person has been mentionedwho may have declined to be witness. The High Court, despitenoticing the absence of any recovery memo prepared at the timeof search and seizure under Section 50 of the Narcotic Drugs andGPsychotropic Substances Act, 1985, opined that the depositionof the police witness to that effect was sufficient compliance.Though the Laboratory Report was obtained, but the identity ofthe sample stated to have been seized from the appellant was notconclusively established by the prosecution. [Para 5] [776-D-F]H

2. 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 sample tested was narcotics cannot be conclusive proofby itself. The sample seized and that tested have to be co-related.The conviction by the Trial Court and upheld by the High Courtare unsustainable and are accordingly set aside. The appellant isacquitted. [Paras 8, 10] [777-F; 778-E-F]

Mohan Lal v. State of Punjab AIR 2018 SC 3853 :2018 SCR 1006 ; Vijay Jain v. State of Madhya Pradesh(2013) 14 SCC 527 : [2013] 4 SCR 293 ; Ashok aliasDangra Jaiswal v. State of Madhya Pradesh (2011) 5SCC 123 : [2011] 4 SCR 253 – relied on.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1143 of 2019.

From the Judgment and Order dated 10.10.2018 of the High Courtof Judicature at Allahabad in Criminal Appeal No. 7351 of 2007.

Tripurari Ray, Balwant Singh Billowria, Suresh Kumar Sharma,Parveen Kumar, Prafulla Kumar, Rajesh Singh, Advs. for the Appellant.

Sanjay Kumar Tyagi, Ajay Kr. Prajapati, A. K. Pandey, YogeshPachouri, Sandeep Singh, Advs. for the Respondent.

The Judgment of the Court was delivered by

NAVIN SINHA, J.

1. The appellant assails his conviction and sentence under Sections8 and 15 of the of the Narcotic Drugs and Psychotropic Substances Act,1985 (hereinafter referred as “the NDPS Act”) for 15 years along withfine of Rs.1,50,000/- under Section 31 of the NDPS Act.

2. The appellant is stated to have been carrying plastic flourpacket in his right hand leading to recovery of 10 kgs. of opium. Noindependent witness from the locality was included in the investigationand all the witnesses are police officials only.

3. Learned counsel for the appellant alleging false implicationBcontends that he was apprehended as he stepped out of his house. Thereis no explanation for the non-availability of any independent witness in aresidential locality. There is non-compliance with Section 50 of the NDPSAct. The prosecution failed to prove that the sample produced in courtwas the same as seized from the appellant.

C4. Learned counsel for the State submits that the appellant has aprevious history of two convictions under the NDPS Act and he is ahabitual offender. Section 50 has been complied with. The Trial Courthas recorded its satisfaction that the sample produced in court was thesame seized from the appellant. In any event it has caused no prejudiceto the appellant.D

5. We have considered the respective submissions. The seizurewas at 06.40 AM at the door step of the appellant. We find it difficult tobelieve that in rural residential locality, the police were unable to find asingle independent witness. No name of any person has been mentionedwho may have declined to be witness. The High Court, despite noticingEthe absence of any recovery memo prepared at the time of search andseizure under Section 50 of the NDPS Act, opined that the deposition ofthe police witness to that effect was sufficient compliance. Though theLaboratory Report was obtained, but the identity of the sample stated tohave been seized from the appellant was not conclusively established byFthe prosecution.

6. The accused had raised an objection regarding the sampleproduced in court not having been established as seized from him. TheTrial Court opined that “the malkhanas in the State of Uttar Pradeshwere in miserable condition and strange and objectionable thing come toGthe eyes”. The plastic packet produced was of very low quality and thequality of ink used in writing the name of the accused on the same wasnot decipherable and may have got erased with passage of time.Nonetheless, since the allegations against the appellant had been provedby the witnesses, the failure to conclusively identify the sample producedas having been seized from the appellant was inconsequential.

Unfortunately, the High Court did not deal with this aspect of the matterat all. The fact of an earlier conviction may be relevant for the purposeof sentence but cannot be ground for conviction per se.

7. In Mohan Lal vs. State of Punjab, AIR 2018 SC 3853, it wasobserved:

“10. Unlike the general principle of criminal jurisprudence that anaccused is presumed innocent unless proved guilty, the NDPSAct carries reverse burden of proof under Sections 35 and 54.But that cannot be understood to mean that the moment anallegation is made and the F.I.R. recites compliance with statutoryprocedures leading to recovery, the burden of proof from the veryinception of the prosecution shifts to the accused, without theprosecution having to establish or prove anything more. Thepresumption is rebuttable. Section 35(2) provides that fact canbe said to have been proved if it is established beyond reasonabledoubt and not on preponderance of probability. The stringentprovisions of the NDPS Act, such as Section 37, the minimumsentence of ten years, absence of any provision for remission, donot dispense with the requirement of the prosecution to establisha prima facie case beyond reasonable doubt after investigation,only after which the burden of proof shall shift to the accused.The case of the prosecution cannot be allowed to rest on apreponderance of probabilities.”8. The failure of the prosecution in the present case to relate theseized sample with that seized from the appellant makes the case nodifferent from failure to produce the seized sample itself. In thecircumstances the mere production of laboratory report that the sampletested was narcotics cannot be conclusive proof by itself. The sampleseized and that tested have to be co-related. The observations in VijayJain vs. State of Madhya Pradesh, (2013) 14 SCC 527, as follows areconsidered relevant :

“10. On the other hand, on reading of this Court’s judgment inJitendra’s case, 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 produce

DEF

Aduring 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 particularlyBwhen the panch witnesses have turned hostile. Again, in the caseof Ashok (supra), this Court found that the alleged narcotic powderseized from the possession of the accused was not produced beforethe trial court as material exhibit and there was no explanation forits non-production and this Court held that there was therefore noCevidence to connect the forensic report with the substance thatwas seized from the possession of the appellant.”

9. In Ashok alias Dangra Jaiswal vs. State of Madhya Pradesh,(2011) 5 SCC 123, it was observed:

“12. Last but not the least, the alleged narcotic powder seizedDfrom 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 orEthe other accused.”

10. We are, therefore, unable to uphold the conviction of theappellant. The conviction by the Trial Court and upheld by the HighCourt are unsustainable and are accordingly set aside. The appellant isacquitted. He is directed to be released forthwith unless wanted in anyother case.F

11. The appeal is allowed.

Ankit Gyan

Appeal allowed.