THAN KUNWAR versus STATE OF HARYANA

[2020] 3 S.C.R. 1090

[2020] 3 S.C.R.

THAN KUNWAR

STATE OF HARYANA

(Criminal Appeal No. 2172 of 2011)

BMARCH 02, 2020

[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985 –s.50 – Applicability of s.50 in case where there is personal searchalso – In the instant case, appellant and another accused carryingCa bag in their hands were intercepted by police party – Contrabandgoods weighing 6 kg 300 gms were recovered from the bag –Conviction of appellant under s.18 by courts below – Challengedon the ground that s.50 was not complied; that DSP-Gazetted Officerin whose presence the search as alleged by the prosecution wasDconducted was present at the same time in another case; that thecontraband allegedly 6 kgs 300 gms was not produced before thecourt and that prosecution has not associated any independentprosecution witness in support of its case – Held: This is not casewhere anything was recovered on the alleged personal search –The recovery was effected from the bag for which law is settled thatEcompliance with s.50 of the Act is not required – The contentionregarding non-production of the contraband was not taken beforethe trial Court – This contention as such was taken before the HighCourt – This is case where the sample was produced – There wasno argument relating to the tampering with the seal – Courts belowFreposed confidence in the deposition of the prosecution witnesses –Thus, in the light of this, case was not made for overturning theverdict of guilt returned against the appellant – In the circumstances,even though there appeared doubt as to whether the DSP waspresent, upon being called by PW7 having regard to the testimonyof the DSP in the other case, in view of the fact that the contrabandGarticles were in fact recovered upon search of the bag, and bearingin mind the view taken in Baljinder Singh, the case of the appellant isrejected.

Dismissing the appeal, the Court

HELD: This is not case where anything was recoveredon the alleged personal search. The recovery was effected fromthe bag for which it is settled law that compliance with Section 50of the Act is not required. The judgment of the Trial Court didnot appear to suggest the appellant had taken the contentionregarding non-production of the contraband before the trial Court.This contention as such was taken before the High Court. Thisis case where the sample was produced. There is no argumentrelating to the tampering with the seal. Though there appears tobe doubt created about whether the DSP was present, upon beingcalled by PW7 having regard to the testimony of the DSP in theother case, in view of the fact that the contraband articles were infact recovered upon search of the bag, there is no merit in theargument of the appellant. [Paras 21, 30, 34][1098-G-H; 1104-E-F; 1105-E]

Ashok alias Dangra Jaiswal v. State of Madhya Pradesh(2011) 5 SCC 123 : [2011] 4 SCR 253 – distinguished.

State of Punjab v. Baljinder Singh and Another (2019)10 SCC 473 – relied on.

Jitendra and Another v. State of M.P (2004) 10 SCC562 : [2003] 3 Suppl. SCR 918 ; Gorakh Nath Prasadv. State of Bihar (2018) 2 SCC 305 ; State of Rajasthanv. Sahi Ram (2019) 10 SCC 649 ; Dilip and Another v.State of M.P. (2007) 1 SCC 450 : [2006] 9 Suppl. SCR390 ; SK. Raju alias Abdul Haque alias Jagga v. Stateof West Bengal (2018) 9 SCC 708 : [2018] 10 SCR731 ; Vijay Jain v. State of Madhya Pradesh (2013) 14SCC 527 : [2013] 4 SCR 293 ; Mohinder Singh v. Stateof Punjab (2018) 18 SCC 540 : [2018] 10 SCR 910 –referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.2172 of 2011.CFrom the Judgment and Order dated 18.08.2008 of the High Courtof Punjab and Haryana at Chandigarh in Criminal Appeal No. 2113-SBof 2005.

Uday Gupta, Hiren Dasan, Chand Qureshi, Hemant Kushwaha,Ashish Gupta, Mrs. Sarla Chandra, Advs. for the Appellant.DShekhar Raj Sharma, Dr. Monika Gusain, Advs. for theRespondent.

The Judgment of the Court was delivered by

K. M. JOSEPH, J.E

1. The appellant was accused No. 1 before the Trial Court andthe appellant before the High Court, which, by the impugned judgement,confirmed the judgment of the Trial Court and convicted her under Section18 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPSAct).F2. The prosecution case, briefly put, is as follows:

On 10.04.2004, ASI-PW7 and other police officials noticed theappellant and another accused approaching from 8, Marla Colony carryinga bag in their hands. On seeing the police party, the accused allegedlyturned back and started walking briskly. This aroused suspicion in theGmind of the ASI. He intercepted them. The bag was suspected to containnarcotic items. The accused were informed that if they so desired, theycould have search of the bag in the presence of Gazetted Officer orMagistrate. The appellant desired search by Gazetted Officer. TheDSP came to the spot. On his directions, the search was carried out.The bag contained on weighment 6 kilograms 300 grams of opium.H

THAN KUNWAR v. STATE OF HARYANA

[K. M. JOSEPH, J.]

Samples were taken. Thereafter, the formal FIR was registered. Onreceipt of the FSL report and completing investigation, the charge-sheetwas filed. Prosecution examined 8 witnesses. The appellant deniedincriminating circumstances,in the questioning held under Section 313 ofthe Code of Criminal Procedure. As noticed earlier, the High Court hasaffirmed 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-GazettedOfficer, (in whose presence, the search was alleged by the prosecutionwas conducted) was present at the same time in respect of anothercase. In other words, he would submit that in connection with this casein his testimony, he has stated that he reached the spot at about 01:30P.M. There is evidence that he remained there till about 03:00 P.M.However, this is refuted with reference to his testimony which has beenproduced in the Court, tending to show that he was present from 12:30P.M. on the very same date in connection with another case and heremained there till 02:30 P.M. The question is, therefore, as to how thesame person under whose gaze, the search was allegedly carried out,could be present at two different places at the same time. This broughtunder cloud,the entire prosecution case runs the argument. Next, it iscontended that the contraband, allegedly 6 kilograms 300 grams, wasnot produced before the Court. This vitiated the conviction. In this regard,reliance was placed on the following judgments of this Court:

(1) Jitendra and anotherv. State of M.P.1;

(2) Ashok alias Dangra Jaiswalv. State of Madhya Pradesh2; and

(3) Gorakh Nath Prasadv. State of Bihar3.

5. No doubt, learned Counsel also draws our attention to thejudgment of this Court in State of Rajasthanv. Sahi Ram4, where acontra view is essentially taken based on the fact that if large quantityof contraband is involved, it may not be necessary to produce.

1 (2004) 10 SCC 5622 (2011) 5 SCC 1233 (2018) 2 SCC 3054 (2019) 10 SCC 649

A6. The next contention urged by learned Counsel for the appellantis that, though, it may be true that for searching the bag carried out bythe accused, it may not be necessary to comply with the requirements ofSection 50 of the Act but if there is also personal search, Section 50 isattracted. In this context, he drew our attention to the judgment of Benchof two learned Judges reported in Dilip and anotherv. State of M.P.5.BTherein, it is, inter alia, stated as follows:

“16. In this case, the provisions of Section 50 might not havebeen required to be complied with so far as the search of scooteris concerned, but, keeping in view the fact that the person of theappellants was also searched, it was obligatory on the part of PWC10 to comply with the said provisions. It was not done.”

7. In fact, when it was pointed out by learned Counsel for theappellant that the aforesaid view has been disapproved by Bench ofthree learned Judges in the decision in State of Punjabv. Baljinder Singhand another6, he pointed out that, in fact, Bench of three learned JudgesDhas come to rely on the decision by the Bench of two learned Judges inthe judgment in SK. Raju alias Abdul Haque alias Jaggav. State of West7Bengal.

8. The last contention by the learned Counsel for the appellant isthat the prosecution has not associated any independent witness in supportEof its case. He points out by referring to the judgment itself that therewere witnesses available but still no witnesses other than the officialwitnesses have been enlisted in support of the prosecution case.

9. Per contra, learned Counsel for the State would submit thatthe time of arrival of Sh. Om Parkash, Gazetted Officer (DSP) has notFbeen questioned. He further pointed out that the Court must bear inmind the lapse of time from the date of incident to the time of examinationof the witness.Discrepancy in the timing should not be allowed to discreditthe testimony of the witness. Still further, he submits that this is also acase where contraband articles were recovered from within the bagGcarried by the accused. For carrying out search of bag as distinct fromthe person of the accused, there is no requirement to comply with Section50. As regards, the contention that the contraband articles were not

5 (2007) 1 SCC 4506 (2019) 10 SCC 4737 (2018) 9 SCC 708H

produced before the Court,it is submitted that it is not the law that thecontraband articles must be produced. There is no provision in the Actwhich mandates its production. Still further, he would point out that theappellant has not raised this complaint before the Trial court or the HighCourt. There is no dispute raised by Counsel, in fact, that thecontrabandarticle, as such, is not produced. However, he pointed out that there isthe FSL report. He supports the judgment of the High Court in regard tothe non-production of any independent witness.

10. First question which falls for our consideration is whetherthere is merit in the contention of the appellant that no independent witnessis produced. In this regard, the testimony of PW-6 is relied upon. In hiscross-examination, he has, inter alia, stated as follows:

It was busy place; people were passing thereby. Somepersons from the public were called but they were reluctant butno action was taken. Resident of Kabri was asked to join theinvestigation. Sunil, Gulshan, were also do so. They were there atabout 1:00 P.M. I did not know prem was Sarpanch or not of thevillage. They stopped for about 5 minutes at the spot. Some peoplewere called from the nearby shop but I do not know their namesof the name of the shop.

11. It is, therefore, the case of the appellant, this is not casewhere independent witnesses could not have been associated with theinvestigation and the prosecution.

12. We will deal with this after we also consider the other aspects.The next aspect which is highlighted, as already noticed, was thediscrepancy brought out in the testimony of the Gazetted Officer, viz.,the DSP who was allegedly called in by the ASI when upon beinginformed about the right under Section 50, the accused demandedcompliance of Section 50 and on telephone message, the DSP arrivedat the spot. In his deposition, it is true that the Gazetted Officer (DSP)has deposed, inter alia, as follows:

He received telephone call on his mobile phone from ASI.It was at about 01:10 P.M., he received the call. He reached thespot at about 01:30 P.M.

The ASI examined as PW-7, has stated that the accusedwas apprehended at about 01:00 P.M. and they remained at thespot till 04:30 P.M. Notice under Section 50 of the Act, was given

Aat about 01:05 P.M. Message to the DSP was sent telephonicallyby about 01:05 P.M. He does not remember from the name of theshop from which the telephone call was made. The DSP/GazettedOfficer was present in the office at that time. The DSP came atabout 01:20 P.M. He remained at the spot till 03.00 P.M.

B13. The case of the appellant is based on the following testimonywhich was given by the very same, DSP in another case, which hasbeen marked in the Trial Court. In the said case (viz., Statev. HeeraLal), he states, inter alia, as follows:

On 10.04.2004, he was posted as DSP Head Quarters,CPanipat. He was present in his office at about 12 Noon. He deposedto have received telephone call from police officer that noticeunder Section 50 has been served and the person apprehended inthe said case opted to have search before 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-Dexamination that he remained at the spot upto 02:30 P.M. Hereached the spot or place of occurrence at about 12:20 PM. Thedistance to the spot from his office was stated to be 2.5 km.

14. Thus, on the one hand, in this case, the very same officer hasdeposed that he reached the spot at about 01:30 P.M. and the ASI hasEdeposed that he remained at the spot till 03:00 P.M. The DSP has deposedin connection with another case that he reached the spot of thatinvestigation in connection with that case at about 12:20 P.M. andremained there till 02:30 P.M. The argument, therefore, is that from theevidence, the DSP must be present at the same time at two differentFplaces. This clearly rendered prosecution case suspect and benefit ofdoubt should at any rate must go to the accused.

15. As regards the contention of violation of Section 50 it is basedon their being personal search of the accused. PW 6, the ASI has interalia stated as follows:GPersonal search of accused was taken by the lady constableunder the shadow of the jeep. I do not remember… I do notremember the direction of the jeep under which the personal searchof the accused was taken. The lady constable has alone takenaway the accused for personal search…. I do not rememberwhether at the time of personal search driver of the jeep was inHthe jeep or not.16. Learned Counsel for the appellant drew our attention to thejudgment of this Court in Dilip(supra). Therein, Bench of two learnedJudges held, inter alia, as follows:

“16. In this case, the provisions of Section 50 might nothave been required to be complied with so far as the search ofscooter is concerned, but, keeping in view the fact that the personof the appellants was also searched, it was obligatory on the partof PW 10 to comply with the said provisions. It was not done.”

17. No doubt we notice the judgment of this Court rendered by aBench of three learned Judges in SK. Raju(supra). Therein, the Courtreferred to the judgment in Dilip(supra), and thereafter, went on to,inter alia, hold as follows:

“As soon as the search of the person take place therequirement of mandatory compliance with Section 50 is attractedirrespective of whether contraband is recovered from the personof the detainee or not.”

18. In the said case, the Court went on to hold that requirement ofSection 50 was complied with. However, we notice later developmentin the form of judgment rendered by Bench of three learned judgestouching upon the correctness of the view expressed in Dilip(supra) ascontained in paragraph 16 of the judgment.

19. In Baljinder Singh(supra), this Court elaborately consideredthe matter with reference to the applicability of Section 50 in casewhere there is personal search also.

20. This was the case where 7 bags of poppy husk each weighing34 kg. were found from the vehicle. personal search of the accusedwas undertaken after their arrest which did not lead to any recovery ofcontraband. The High Court found violation of Section 50 as the personalsearch of the accused was not conducted before the Magistrate/GazettedOfficer and set aside the conviction of the respondent. This Court, inBaljinder Singh(supra), went on to consider the law laid down by theConstitution Bench in Baldev Singh(supra) and, inter alia, held as follows:

“16. The conclusion (3) as recorded by the ConstitutionBench in para 57 of its judgment in Baldev Singh [State ofPunjab v. Baldev Singh, (1999) 6 SCC 172: 1999 SCC (Cri) 1080]clearly states that the conviction may not be based “only” on the

Abasis of possession of an illicit article recovered from personalsearch in violation of the requirements under Section 50 of theAct, but if there be other evidence on record, such material cancertainly be looked into.

17. In the instant case, the personal search of the accusedBdid not result in recovery of any contraband. Even if there wasany such recovery, the same could not be relied upon for want ofcompliance of the requirements of Section 50 of the Act. But thesearch of the vehicle and recovery of contraband pursuant theretohaving stood proved, merely because there was non-complianceof Section 50 of the Act as far as “personal search” wasCconcerned, no benefit can be extended so as to invalidate theeffect of recovery from the search of the vehicle. Any such ideawould be directly in the teeth of conclusion (3) as aforesaid.

18. The decision of this Court in Dilip case [Dilip v. Stateof M.P., (2007) 1 SCC 450 : (2007) 1 SCC (Cri) 377] , however,Dhas not adverted to the distinction as discussed hereinabove andproceeded to confer advantage upon the accused even in respectof recovery from the vehicle, on the ground that the requirementsof Section 50 relating to personal search were not complied with.In our view, the decision of this Court in the said judgment in DilipEcase [Dilip v. State of M.P., (2007) 1 SCC 450 : (2007) 1 SCC(Cri) 377] is not correct and is opposed to the law laid down bythis Court in Baldev Singh [State of Punjab v. Baldev Singh,(1999) 6 SCC 172 : 1999 SCC (Cri) 1080] and other judgments.”21. Having regard to the judgment by the three-Judge Bench,Fwhich directly dealt with this issue, viz., the correctness of the view inDilip(supra) reliance placed by the appellant on paragraph 16 may notbe available. As already noticed, we are not oblivious of the observationwhich has been made in the other three Judge Bench judgment of thisCourt in SK. Raju(supra), which it appears, was not brought to thenotice to the Bench which decided the case later in Baljinder SinghG(supra). We notice however that the later decision draws inspirationfrom the Constitution Bench decision in Baldev Singh(supra). We alsonotice that this is not case where anything was recovered on the allegedpersonal search. The recovery was effected from the bag for which it issettled law that compliance with Section 50 of the Act is not required.

22. The complaint, of non-production of the seized material, isbased on case law of this Court originating with the judgment of thisCourt in Jitendra(supra). It is necessary to survey the case law beginningwith Jitendra(supra). In the said case, it is necessary to notice certainfacts. There were panch witnesses for the recovery examined by theprosecution. They turned hostile. Apart from the prosecution witnessesPW7, PW8 and PW6, there was found no independent witness regardingrecovery. It is worthwhile to set out paragraph 6. It reads as under:

“6. In our view, the view taken by the High Court isunsustainable. In the trial it was necessary for the prosecution toestablish by cogent evidence that the lleged quantitiesof charas and ganja were seized from the possession of theaccused. The best evidence would have been the seized materialswhich ought to have been produced during the trial and markedas material objects. There is no explanation for this failure toproduce them. Mere oral evidence as to their features andproduction of panchnama does not discharge the heavy burdenwhich lies on the prosecution, particularly where the offence ispunishable with stringent sentence as under the NDPS Act. Inthis case, we notice that panchas have turned hostile so thepanchnama is nothing but document written by the police officer-concerned. The suggestion made by the defence in the crossexamination is worthy of notice. It was suggested to theprosecution witnesses that the landlady of the house in collusionwith the police had lodged false case only for evicting the accusedfrom the house in which they were living. Finally, we notice thatthe investigating officer was also not examined. Against thisbackground, to say that, despite the panch witnesses having turned--hostile, the nonexamination of the investigating officer and nonproduction of the seized drugs, the conviction under the NDPSAct can still be sustained, is far-fetched.”

(Emphasis supplied)

23. We notice that this decision came to be followed in the judgmentreported in Ashok alias Dangra Jaiswal(supra). Therein, the Court noted,apart from seizure witness turning hostile, which was found to be not anuncommon phenomenon, certain other features, asare narrated inparagraphs 10 and 11, which read as under:

A“10. The seizure of the alleged narcotic substance is shownto have been made on 8-3-2005, at 11.45 in the evening. Thesamples taken 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 12-3-2005Bdue 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, tillCtheir 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 basisthe police submitted charge-sheet against the accused onD31-3-2005, but the alleged narcotic substance that was seized fromthe accused, 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.”

24. It is thereafter the Court noted that last but not the least theEnarcotic powder was never produced in the trial court as materialobject and again there was no explanation for its non-production. It wasfound that there was no evidence to connect forensic report with thesubstance that was seized from the possession of the appellant or theother accused (see paragraph 12). It was in these circumstances theCourt drew support from the judgment of this Court in Jitendra(supra).FThe appellant has not been able to demonstrate in the facts of this caseany facts which could be likened to the facts stated in paragraphs 10and 11. At least nothing was urged by the learned Counsel for the appellanton these lines.

25. Next judgment to be noticed is Vijay Jainv. State of MadhyaGPradesh8. The first feature we notice is that the contention about thecontraband not being produced was raised before the trial court (seeparagraph 5). It was case where suitcase was produced as containingthe alleged contraband. In regard to the suitcase, the evidence of PW11

8 (2013) 14 SCC 527H

was elaborately considered. It was found that the only evidence beforethe Court was that in the suitcase there was only big pack wrapped incloth and cloth was torn and there was bluecolour polythene in whichthere were clothes. The evidence of PW11 did not reveal any brownsugar being found in the suitcase. No doubt, the Court referred to twosamples being prepared. Then the Court noted that PW3 has statedbefore the court that those samples were not prepared in his presence.PW2 had stated that the witnesses were not taken to the site where thematerials were seized. In Gorakh Nath Prasad(supra), the Court notedthat neither the seized Ganja nor the sample drawn at the time of seizurewas produced. The investigating officer-PW7 deposed there were noMR No. on the sealed material. He was also not sure whether the seizedmaterial had been kept at the Malkhana and also that it had not beenproduced in the Court. The independent witness with regard to the searchand seizure, PW2 and PW3 turned hostile. In these circumstances, itappears the court went on to hold that non-production of the seizedmaterial was therefore fatal to the prosecution case. The Court thereafterreferred to the judgment of Ashok(supra) following Jitendra(supra).Lastly, we notice the judgment of this Court in Mohinder Singhv. Stateof Punjab9. It was rendered by Bench of three learned Judges. It wasa case where the Trial Court had acquitted the appellant noticing, interalia, that no order of the Magistrate was proved to show that the caseproperty was produced before the Court. The High Court went on toreverse the acquittal and convicted the appellant. It is worthwhile tonotice what this Court had said in the facts of this case:

“10. So far as the contention regarding production of thecontraband seized from the accused, in his evidence, HarbhajanSingh (PW 3) stated that on 1-5-1998, he produced the sampleparcels and the case property parcels with the seal and the sampleseals before the Judicial Magistrate, Ludhiana and the Magistratehas recorded the seals tallied with the specimen impression.Harbhajan Singh (PW 3) further stated that after return of thesamples and the parcels from the court, the same were lodged byhim to the Malkhana on 1-5-1998 itself. Baldev Singh (PW 5) thethen Malkhana incharge 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 relevant entry in Register No. 19 as to deposit of the caseproperty in the Malkhana. Oral evidence of Harbhajan Singh (PW3) and Baldev Singh (PW 5) as to the deposit of the contrabandseized from the accused with Malkhana is not corroborated bythe documentary evidence, namely, the entry in Register No. 19.

B11. After referring to the oral evidence of Joginder Singh(PW 2) and Harbhajan Singh (PW 3), the trial court in para 14 ofits judgment has recorded the finding that no order of theMagistrate to prove the production of the contraband before theMagistrate was available on the file. After recording suchobservation, the trial court held that the oral evidence regardingCproduction of the case property before the Magistrate was nottrustworthy and not acceptable. In the absence of the order ofthe Magistrate showing that the contraband seized from theaccused was produced before the Magistrate, the oral evidenceadduced that the contraband was produced before the MagistrateDcannot form the basis to record the conviction.”

26. Finally, it is necessary also to refer to paragraph 12 regardingthe observation made therein. It would assume relevance, which readsas follows:

“12. For proving the offence under the NDPS Act, it isEnecessary for the prosecution to establish the quantity of thecontraband goods allegedly seized from the possession of theaccused and the best evidence would be the court records as tothe production of the contraband before the Magistrate and depositof the same before the Malkhana or the document showingdestruction of the contraband.”F27. For determining the exact provision applicable under the law,viz., whether the offence relates to commercial quantity or the othercategories, it may be necessary.

28. In the facts of this case we, however, notice certain features.GBefore the Trial Court, the contention as such that not seen raised aboutthe non-production of the contraband articles. We may also howeverrefer to the judgment of this Court in Sahi Ram(supra). This was casewhere the vehicle was searched, during which 7 bags of poppy straw,the gross weight being 233 kg., were found behind the driver’s seat.Samples were taken. The High court in appeal by the respondent foundH

that only 2 sample packets and one bag of poppy straw weighing 2.5 kg.were produced and relying upon the case law which we have referredto, acquitted the respondent. The Court also noted paragraph 9 of thejudgment in Jitendra(supra) where the court observed, taking thecumulative effect of all circumstances, it was not sufficient to bringhome the charge. The Court also referred to the judgment of this Courtin Mohinder Singh(supra).

29. The Court also went to hold in Sahi Ram(supra) that if seizureis otherwise proved on record and it is not even doubted or disputed, itneed not be placed before the Court. The Court further held that if theseizure is otherwise proved what is required to be proved is the fact thatsamples taken out of contraband are kept intact. This Court held asfollows:

“15. It is true that in all the aforesaid cases submission wasadvanced on behalf of the accused that failure to producecontraband material before the Court ought to result in acquittalof the accused. However, in none of the aforesaid cases the saidsubmission singularly weighed with this Court to extend benefit ofacquittal only on that ground. As is clear from the decision of thisCourt in Jitendra [Jitendra v. State of M.P., (2004) 10 SCC 562:2004 SCC (Cri) 2028], apart from the aforesaid submission otherfacets of the matter also weighed with the Court which is evidentfrom paras 7 to 9 of the decision.Similarly in Ashok [Ashok v. State of M.P., (2011) 5 SCC 123 :(2011) 2 SCC (Cri) 547], the fact that there was no explanationwhere the seized substance was kept (para 11) and the furtherfact that there was no evidence to connect the forensic reportwith the substance that was seized, (para 12) were also reliedupon while extending benefit of doubt in favour of the accused.Similarly, in Vijay Jain [Vijay Jain v. State of M.P., (2013) 14SCC 527 : (2014) 4 SCC (Cri) 276] , the fact that the evidence onrecord did not establish that the material was seized from theappellants, was one of the relevant circumstances. In the latestdecision of this Court in Vijay Pandey [Vijay Pandey v. Stateof U.P., (2019) 18 SCC 215 : 2019 SCC Online SC 942] , againthe fact that there was no evidence to connect the forensic reportwith the substance that was seized was also relied upon to extendthe benefit of acquittal.

16. It is thus clear that in none of the decisions of this Court,non-production of the contraband material before the court hassingularly been found to be sufficient to grant the benefit ofacquittal.

xxxxxxxxx

18. If the seizure of the material is otherwise proved onrecord and is not even doubted or disputed, the entire contrabandmaterial need not be placed before the court. If the seizure isotherwise not in doubt, there is no requirement that the entirematerial ought to be produced before the court. At times theCmaterial could be so bulky, for instance as in the present materialwhen those 7 bags weighed 223 kg that it may not be possible andfeasible to produce the entire bulk before the court. If the seizureis otherwise proved, what is required to be proved is the fact thatthe samples taken from and out of the contraband material werekept intact, that when the samples were submitted for forensicDexamination the seals were intact, that the report of the forensicexperts shows the potency, nature and quality of the contrabandmaterial and that based on such material, the essential ingredientsconstituting an offence are made out.”

30. In the facts of this case, no doubt the contraband article weighedE6 kg 300 gms. perusal of the judgment of the Trial Court does notappear to suggest the appellant had taken the contention regarding non-production of the contraband before the trial Court. This contention assuch is not seen as taken before the High Court. This is case wherethe sample was produced. There is no argument relating to the tamperingFwith the seal. We further notice that in the deposition of the investigatingofficer (PW7), he has stated as follows:

“The case property is Exhibit P1, sampleis Exhibit P2, sampleseal is Exhibit P3 and the bag in which the case property wasrecovered from the possession of the accused present in the Courtis Exhibit P4.”G

31. In the facts of this case, we have no hesitation to reject thecontention of the appellant.

32. Next aspect, which we consider is, whether the conviction ofthe appellant made by two courts requires interference on the groundHthat independent witnesses were not associated with the investigation,

seizure and recovery. We have noticed the evidence which is referredto by the appellant to criticize the impugned judgment on this score. Twocourts have reposed confidence in the deposition of the prosecutionwitnesses. The Investigation Officer-PW7, when examined, has statedas follows:

“…At the time of apprehension of accused none from thepublic was there. There were shops but there was no residentialhouse. Residential colony is at some distance. No woman fromthe locality was called. Some respectables were tried to be called.I do not remember the names of the said persons. Prem Singhson of Raja Ram resident of Kahri, Sunil son of Ram Meharresident of Panipat, Gushan Kumar son of Gainda Ram residentof 8 Marla Colony, Panipat were asked to do so. It was about 2P.M. DSP had also arrived. The aforesaid persons remained withus for 5/10 minutes. They had showed their inability to such anature that I did not think it proper to take legal action againstthem. No shop keeper was called…”

33. In the light of this we do not think that case has been madefor overturning the verdict of guilt returned against the appellant.

34. In the circumstances, as noted above, though there appears tobe doubt created about whether the DSP was present,upon being calledby PW7 having regard to the testimony of the DSP in the other case, inview of the fact that the contraband articles were in fact recoveredupon search of the bag, and bearing in mind the view taken by this Courtin Baljinder Singh(supra),we do not find merit in the argument of theappellant.

35. Lastly, the learned Counsel for the appellant made ferventplea in this case that should his contentions not be found acceptable, theCourt may direct that appellant may not suffer further incarceration inthe State of Haryana but may consider her being housed in jail in theState of Madhya Pradesh where she would have access to her familymembers. This is matter which we leave upon to the appellant to seekappropriate relief. Subject to the same, the appeal stands dismissed.Since the appellant is on bail, her bail bond shall stand cancelled.

Appeal dismissed.