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NON REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1219 OF 2009

State through Narcotics Control Bureau … Appellant

Vs.

Yusuf @ Asif & Ors. … Respondents

J U D G M E N T

ARUN MISHRA, J.

1. The appeal is directed against the judgment and order passed by  

the  High  Court  of  Judicature  at  Madras  recording  acquittal  of  

respondents  thereby  setting  aside  the  judgment  and  order  of  

conviction for  commission of  offence under  section 8(c)  read with  

sections  21,  25  and  29  of  the  Narcotic  Drugs  &  Psychotropic  

Substances  Act,  1985  and  the  sentence  of  10  years’  rigorous  

imprisonment and fine of Rs.1 lakh imposed by the Special Judge for  

NDPS Act cases, Chennai.

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2. According to the prosecution, in a stationed lorry, the appellants  

were sitting inside on 28.3.2000 at 2 a.m. Lorry was parked in front of  

Puzhal Jail, it was intercepted by Rajasekhar PW-1, Jaberia Nazir PW-

2, P.Saran PW-6, all Intelligence Officers of NCB headed by Mr. K.  

Raghavan PW-8, an officer of the Gazetted rank, in the presence of  

the witnesses – Naveenraj, PW-5 and Vinobaraj. Two jute hand-bags  

containing 26 packets were seized. They were marked as S1 and S2  

and seal No.12 was affixed thereon. Statements under section 67 were  

recorded.  The  accused  were  arrested  and  seized  property  was  

produced before the Magistrate. P.Saran, PW-6 deposited the property  

at the NCB. Godown at about 9.30 p.m. on 29.3.2000 as per receipt  

Ex. P-1. Property was produced before the NDPS Court by PW-6 on  

3.4.2000. As per orders of the court, it was deposited in the godown  

for safe custody. Analyst’s report Ex. P-22  was submitted.  

3. Prosecution  examined  Srinivasan  PW-9,  who  prepared  the  

godown receipt  on  29.3.2000  regarding  the  contraband  though  the  

forwarding memo sent along with it mentioned that seal No.12 was  

affixed.  However,  it  was  mentioned  due  to  inadvertence  in  the  

godown receipt that it contained seal No.11. The trial court convicted  

the respondents. On appeal, the High Court has acquitted them on the

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ground that  the prosecution  has  not  proved that  the  seized articles  

were in fact sent for chemical analysis due to the discrepancy in Seal  

number as on receipt of godown seal number 11 was mentioned.

4. We have heard learned counsel appearing for the appellant and  

perused the record. In our considered opinion, the High Court has not  

considered various reasonings given by the trial court in its judgment.  

The trial  court  has given the following reasons with respect  to the  

aforesaid discrepancy in the seal number:

“10.  As per directions of the Court, for receiving  articles in godown, P.W.9 gave Ex.D-1.  But P.W.9  Srinivasa  wrongly  wrote  11  instead  of  1.   On  31.3.2000 regarding Mohammed Safi  accused of  the  separated  case  and  his  family  Ex.P.41  was  obtained from the Superintendent Mansore  Police.  On that basis, he ordered P.W.6 Saran to enquire  into it.  Then P.W.6 on that basis, he ordered P.W.6  Saran  to  enquire  into  it.   Then  P.W.6  gave  complaint  in  the  court  for  taking  action  against  accused 1 to 4 and two accused of the separated  case under section 89(c) r/w 21, 25, 28 and 29 of  the NDPS Act.  Ex. D-1 is the receipt given at the  godown on 29.3.2000.  Ex.D-2 is the letter written  from the court to the Chemical Laboratory.  Ex.D- 3 is the letter written by Gopal Intelligent officer to  South Zone Narcotic Control Bureau.  Ex.P.4 is the  letter  sent  by  a  Chennai  Officer  to  Chandigarh  officer  on 1.4.2000.  Ex.D-5 is the Fax message  sent from N.C.P. Zonal to Director General, N.C.B.

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New Delhi E.D.-6 is the letter sent by from NCD  New Delhi to D.B.G.(I).

x x x x x

14. Regarding this, 1999 Supreme Court Cases  Criminal Page 95, 2002 (1) S.B.R. 615 (Supreme  Court of India),  2001 (2) C.T.C. Page 764, 2002  Criminal Law Journal 749 were pointed to by the  defence  side.   During  Prosecution  argument,  prosecution  reply  that  P.Ws.1,  2,  6  and  8  were  authorized officers and that on the basis of written  document  Ex.1,  after  giving  information  to  the  superior  officer  they  went  to  the  scene  of  occurrence  and  that  when  P.W.1  questioned  accused 1 he produced M.O.30 Heroin voluntarily  from  the  lorry  cabin  and  that  P.W.1  being  intelligent  officer,  though  he  need  not  leak  out  information he made endorsement on Ex.P.1 and  giving  information  to  Superintendent  and  got  orders from him and therefore their contention is  not acceptable and further they went to the scene  of the information and in the presence of P.W.1, 2,  6  and  8  and  independent   witness  P.W.5  and  witness Vinoba Raj they gave information to the  accused that they were going to inspect the lorry  and that they informed the accused that they were  entitled to be inspected either in the presence of a  gazette  officer  or  in  the  presence  of  Judicial  Magistrate as per section 50 of the above Act and  they obtained Ex.P.2 to 5 wherein accused stated  that they need not do so and that further, articles  were recovered from cabin of the lorry section 50  need not be enforced and the prosecution witnesses  did not transgress provisions of 41(1) and 4a (2) of  the  Act  or  section  50  of  the  above  Act  and  therefore the contention that the case is vitiated is  not acceptable and that seized articles were marked  as  NCB  12  and  were  handed  over  as  Ex.P.29.  Therefore it was subjected to chemical analysis as  per court order and that on the contrary in Ex.D.1,

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the  mark  was  wrongly  marked  as  NCB  11,  as  deposed by P.W.9 and therefore the articles were  sent to chemical laboratory through NCB mark 12  and  Ex.P.22  was  obtained  stating  the  articles  analyzed  was  Heroin  and  that  therefore  the  contention  that  wrong  materials  were  sent  for  chemical analysis was not acceptable and therefore  the  citations  given  by  the  defence  side  are  not  relevant to fact and in support of their argument,  they  pointed  out  citations  (2001)  Supreme  Page  363,  (2001)  (3)  Crimes  page  377,  J.T.  2001  S.T.330 and 2000 Supreme Court Cases Criminal  Page  506  and  Chennai  High  Court  Criminal  Appeal  N.898/98  order  dated  12.6.2001  and  Notification  dated  6/86  F.No.664/75/    Opium- 1.11.86 and Notification No.8/86 dated 1.11.86.

x x x x x

23. Next though the witnesses deposed that they  put NCB seal 12 on the seized articles but as per  Ex.P.1  NCB seal  11  was  affixed  and  the  before  benefit  of  doubt  be given to  the accused and in  support  of  their  contention,  they  produced  the  citation 2001 (1) (2) C.P.C. 764 para – 4.  Further  2002  (1)  S.B.R.  615  Supreme  Court  of  India  Judgment was pointed out.  Arguing on behalf of  prosecution, it is pointed out that in the preparation  of Ex.P.6 Mahazar for seizure of articles from the  accused, the NCB seal 12 was affixed and as per  Ex.P-19,  when  P.W.3  obtained  statement  he  mentioned NCB seal 12 and further when Ex.P-28  was handed over in the court,  NCB seal  12 was  affixed.  In the annexure attached to it and further  in  the  Ex.P-30  document  requesting  to  send  articles for chemical analysis it was mentioned and  Ex.P-20 in  copy of  letter  to  chemical  laboratory  and in Ex.P-21 Test Memo, it was mentioned and  that in Ex.P-1 it was wrongly mentioned as NCR  seal  11  instead  of  12  and  that  articles  sent  for  chemical analyzing are not concerned in this case

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it  not  acceptable  and  that  further  regarding  that  D.Ws.8  and  9  gave  evidences  and  therefore  the  contention that the seized articles of this case were  not sent for chemical analysis and that Ex.P.22 is  not  chemical  analysis  report  of  the  case  is  not  acceptable the the citation 2001 (2) C.P.C.  page  764 and 2002 (1) S.B.R. 615 put forwarded by the  defence side is not relevant to this case.  Regarding  that perusing Ex.P.6 Mahazar, page 5 it is stated in  the Ex.P.6 that NCB seal 12 was affixed and that  NCB seal 12 was affixed on Ex.M.O. 1 to 26, 27  and 28.

24. Further, it is said that in Ex.P.28 Annexure,  sample NCB was affixed in it, special court judge  ordered to handover Ex.P.1 to 3 and 5 to intelligent  officer and he received the same.  Before that as  per Ex.P.29.   On 203.2000 night at 21.30 on the  basis  of  forwarding memo No.8/2000 he handed  over in the NCB godown incharge, Southern Zone.  As per Ex.P.30 he requested to send the articles for  chemical analysis as per Ex.P-29 for entrusting the  articles,  he  received  receipt  Ex.P1  in  it  on  29.3.2001 receipt No.8/2000 was received as per  Ex.P.29 and seal No.12 was mentioned.  But Ex.P- 1 it must have been marked as  seal No.11 instead  of 12.  For that purpose  P.W.9 was examined and  explanation  was  obtained.   Regarding  the  P.W.8  mentioned in his deposition.  On the basis of Ex.  P-30 requisition as per Ex.P-20 for analysis, court  sent  articles  as  per  Ex.P-21 test  memo,  Ex.P-20  and Ex.P-2 are one and the same.  It is very clear  that the seal 12 is only for the seized articles of the  case.  On the contrary, the court considers that the  mark  mentioned  in  Ex.P-1  was  wrong.   P.W.4  examined the above said articles and gave Ex.P-22  report stating that the above articles were Heroin  regarding the mark 12 in the articles produced by

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the  accused  1,  P.Ws.  1,  2  and  independent  witnesses  5 and P.W.8 gave evidence.  

x x x x x

27. He sent Ex.P-35 summons to manager of the  Hotel  where  the  accused  1  and  2  stayed  and  obtained Ex.P-36 statement from him.   Further he  examined accused – 1 and obtained Ex.P-37 from  the accused 1.  Further P.W.8 obtained reports from  P.W.1, 2 and 6 and as per Ex.P-40 he sent report to  superior officer.   As per Ex.P-41 to 43 he obtained  report   for  accused  5  and  6  (separate  accused).  Receiving  the  above  said  reports,  P.W.6  Saran  under  Section  8(c)  r/w  21,  25,  28  and  29  of  Narcotic Drugs and Psychotropic Substances Act  1985.   It is decided that from the examination of  the above said prosecution witnesses and on the  basis  of  documents  it  is  established  beyond  all  reasonable  doubts  that  the  accused  transported  Heroin,  narcotic substance without Government’s  permission and possessed the same for the purpose  of selling.”

5. The trial court has given various reasons, considered statement  

of witnesses, effect of various documents including of sending them to  

the chemical analyst and trial Judge also compared the seals and came  

to the conclusion that the same articles which were seized were sent  

for  chemical  examination.  The  High  Court  has  not  considered  the  

other  material  on record  which according to  trial  court  established  

identity of sample sent for chemical examination with the contraband  

which was seized, and has also overlooked the effect of forwarding

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memo  to  godown  which  contained  seal  No.12,  and  effect  of  

remanding Magistrate endorsement.  Merely because no departmental  

action had been taken against PW-9 for mentioning seal No.11 instead  

of seal No.12 the prosecution case could not have been disbelieved.  

The effect of  document Ex. D-2 which indicated that samples “are  

duly checked and sealed with my office Seal and sent through Shri  

B.Sharan  (PW-6).  …  Ex.  D-2  contains  the  facsimile  of  both  seal  

No.12 affixed by NCB on the samples at the time of seizure and the  

facsimile of the Special Judge’s seal”, has not been considered.  The  

effect of the fact that the trial Judge saw and compared seals on the  

samples and contraband at the time of marking them as MOs. 1 to 29,  

has not been adverted to by the High Court. The High Court has also  

not compared the seals. It was also submitted that the High Court has  

not considered that the chemical examiner has stated that the sample  

covers contained NCB seal and court seal on contraband and samples  

sent for analysis.  In the report Ex. P-22 it was mentioned that the  

seals  in  each  packet  were  compared  with  the  respective  facsimile  

given on the above-referred letter and found to tally. Reasons given in  

para  25  of  the  judgment  of  trial  court  have  not  been  taken  into  

consideration by the High Court.

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6. It  is  trite  law that  while  reversing the  Judgment  the  reasons  

given by the trial court ought to have been taken into consideration  

along with the entire evidence in that regard. Same has not been done  

by the High Court. As such without commenting on the merits of the  

case  we  find  the  judgment  and  order  of  the  High  Court  to  be  

unsustainable. Same is hereby quashed and we remit the case to the  

High Court to decide the appeal afresh in accordance with law duly  

considering the reasoning employed by the trial court and the entire  

evidence.   

7. Appeal is accordingly disposed of.            

…………………………J. (M.Y. Eqbal)

New Delhi; ………………………..J. January  18, 2016. (Arun Mishra)