Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016 State of Rajasthan vs. Sahi Ram

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Reportable IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1497 OF 2019 (Arising out of SLP(Crl.) No.8428 of 2016)

STATE OF RAJASTHAN        …APPELLANT

VERSUS

SAHI RAM                      …RESPONDENT

J U D G M E N T

Uday Umesh Lalit, J.

1. Leave granted.

2. This appeal challenges the final order dated 07.04.2016 passed by  

the High Court1 in S.B. Criminal Appeal No.774 of 2015.

3. On  receiving  source  information  on  20.06.2006  that  in  a  white

coloured  Tavera  vehicle  bearing  registration  No.RJ27-TC-0323  three

persons  were  coming  from  Madhya  Pradesh  along  with  contraband

material namely poppy straw and were proceeding towards Jodhpur, the

information was reduced to writing and a copy was immediately forwarded

to  the  superior  officers  in  terms  of  requirements  of  Section  42  of  the

1 The High Court of Judicature for Rajasthan at Jodhpur

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Narcotic  Drugs  and  Psychotropic  Substances  Act,  1985  (hereinafter

referred to as “the NDPS Act”).  

4. A team  was  thereafter  constituted  which  reached  the  Railway

crossing near petrol pump Nimbahera.  Two private persons named Kishan

Lal and Chaman Lal were asked to associate as Panchas.  At 9.40 AM, the

vehicle was seen coming from Neemuch and was stopped.  The vehicle

was being driven by the respondent while the other two occupants were

identified  as  Sohan  and  Kanhaiya  Lal.   After  following  mandatory

requirements  under  the  provisions  of  the  NDPS  Act,  the  vehicle  was

searched, during which seven bags of poppy straw, the gross weight being

223 kgs were found behind the driver’s seat.  From every bag two samples

of 500 grams were taken and two such samples were sealed.  Remaining

quantity of 2500 grams was put in a separate pouch.  The bags weighing

about 223 kgs were also sealed.  Punchnama to that effect was recorded

which bore the signatures of the respondent and other persons.   

5. After completing investigation, charge-sheet was filed against the

respondent  and  against  said  Sohan  and  Kanhaiya  Lal  for  the  offence

punishable  under  Section  8  read  with  15  of  the  NDPS  Act  while  the

investigation was kept pending against one Shyam Sunder, his wife Vimla,

the owners of the vehicle and one Pappu Raja.  By Order dated 25.05.2015,

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said Sohan and Kanhaiya Lal were marked as absconding accused in the

trial.    

6. The  prosecution  examined  eighteen  witnesses  in  support  of  its

case.        PW15, Surender Singh, from Police Station Nimbahera had

entered  the  information  in  Rojnamcha  and  had  intimated  the  superior

officials.  As regards the recovery of the contraband material he stated:-

“…… Behind the driver’s seat there were white plastic bags which were tied with strings, which were opened  with  the  help  of  the  police  team  and  the witnesses, and smelled, and then everybody told it to be poppy husk. They were asked if they had any valid license for this poppy husk and they had told that they do not  have any license.  Their  above act  of  all  the three  people  was  found  to  be  punishable  offence under section 8/15 NDPS Act due to which the 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 poppy husk was taken out from every bag and was weighed together and it came out to be 3500 gm. Out of this  two samples of 500 gm each were put in plastic packets and were then put in white cloth bags and seal stamped. The sample was marked A  and  the  control  sample  was  marked  B.  the remaining  2500  gm  sample  was  seal  stamped  and given mark C.”

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

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50 is Exibit P-3, the notice given to accused Kanhaiya Lal under section 50 is Exibit  P-4, which bears my signatures from E to F, and the signatures of accused are from G to H. the memo of seizure of poppy husk is Exibit P-5, which bears my signatures from E to F, and the signatures of accused are from G to H, I to J, K to L.”

7. After  considering  the  relevant  evidence  on  record,  the  Special

Judge,  NDPS  Case  No.2,  Chittorgarh  vide  judgment  dated  01.08.2015

found that the case was established against the respondent herein and he

was convicted for offence punishable under Section 8 read with 15 of the

NDPS Act.  By a separate order of even date, the respondent was sentenced

to  suffer  rigorous  imprisonment  for  fifteen  years  and  to  pay  fine  of

Rs.1,50,000/-; in default whereof he was directed to suffer further rigorous

imprisonment for one year.  It was observed by the trial court:-

“….. In the present case, charge of keeping total 223 kilograms of illegal Dodachura in his conscious possession and transporting it  in Tavera car bearing No.  RJ27-TC-0323  has  been  proved  against  the accused Sahi Ram in the  present  case,  in  regard to which he  had no valid license to keep the same in his possession and quantity of seized illegal Dodachura is more than commercial quantity.”

8. The respondent being aggrieved filed S.B. Criminal Appeal No.774

of 2015 before the High Court.  Only one ground was urged in support of

the appeal that the Muddamal i.e., contraband material in question was not

produced before the Court and that the evidence on record did not support

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the case about the seizure and recovery of 223 kgs. of contraband.  The

High Court accepted the submission and concluded that only two samples-

packets and one bag of poppy straw weighing 2.5 kg were produced and

exhibited  while  the  entire  contraband  material  was  not  produced  and

exhibited.  Relying on the decisions of this Court in Noor Aga v. State of

Punjab & Another2,  Jitendra & Another  v. State of Madhya Pradesh3,

Ashok alias Dangra Jaiswal v. State of Madhya Pradesh4 and Vijay Jain

v.  State  of  Madhya  Pradesh5  it  was  observed  that  failure  to  exhibit

Muddamal and contraband material was fatal to the case of prosecution.

The High Court observed:-

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

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

With  the  aforesaid  view,  the  High  Court  allowed  the  appeal,  set

aside  the  Judgment  and Order  dated  01.08.2015 passed  by  the  Special

Judge and acquitted the respondent of the charge levelled against him.

2 (2008) 16 SCC 417 3 (2004) 10 SCC 562 4 (2011) 5 SCC 123 5 (2013) 14 SCC 527

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9. We heard  Dr.  Manish  Singhvi,  learned Senior  Advocate  for  the

State and Mr. Saurabh Ajay Gupta, learned Advocate for the respondent.

10. At the outset, it must be considered whether the cases relied upon

by the High Court  state  in  unequivocal  terms that  in case of  failure  to

produce  the  contraband  material  before  the  Court,  the  case  of  the

prosecution is required to be discarded or not.   

11. In  Jitendra  &  Another  v. State  of  Madhya  Pradesh3, it  was

undoubtedly submitted on behalf of the accused that the material objects

were not at all produced at the trial.  The submission in that behalf was

recorded in para No.4 as under:

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

It was further submitted that there was no material whatsoever to

prove  that  the  samples  that  were  dispatched  to  the  FSL were  actually

drawn from the seized material.  The matter was considered by this Court

as under:  

“6. In our view, the view taken by the High Court is unsustainable.  In  the  trial  it  was  necessary  for  the

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prosecution to establish by cogent evidence that the alleged quantities  of  charas and  ganja were  seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the  trial  and marked as material  objects.  There  is  no  explanation  for  this failure to produce them. Mere oral evidence as to their features  and  production  of  panchnama  does  not discharge  the  heavy  burden  which  lies  on  the prosecution,  particularly  where  the  offence  is punishable  with  a  stringent  sentence  as  under  the NDPS Act. In this case, we notice that panchas have turned  hostile  so  the  panchnama  is  nothing  but  a document written by the police officer concerned. The suggestion  made  by  the  defence  in  the  cross- examination is worthy of notice. It was suggested to the  prosecution  witnesses  that  the  landlady  of  the house in collusion with the police had lodged a false case only for evicting the accused from the house in which  they  were  living.  Finally,  we  notice  that  the investigating officer was also not examined. Against this  background,  to  say  that,  despite  the  panch witnesses having turned hostile, the non-examination of the investigating officer and non-production of the seized drugs, the conviction under the NDPS Act can still be sustained, is far-fetched.  

7. The learned counsel for the appellants brought to our notice two more facts. The High Court seems to have relied on a copy of the letter dated 14-8-1999 written by the Superintendent of Police, Datia to the Director, State Forensic Laboratory, Sagar and placed reliance thereupon, although this was not a document produced during the trial and proved according to law. The High Court commented that the prosecution had failed to exhibit the letter during the trial and that the trial  court  was  not  vigilant  in  this  respect.  In  the absence  of  anyone  affirming  the  correctness  of  the contents  of  the  letter,  the  High  Court  has  placed reliance on the contents  of  the  letter  merely on the ground  that  the  said  document  was  mentioned  at Serial No. 9 in the charge-sheet, and presumably its copy must have been supplied to the accused. This is another lacuna, noticeable in the judgment of the High Court.

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

9. Taking  the  cumulative  effect of  all  the circumstances, it appears to us that the material placed on record by the prosecution does not bring home the charge beyond reasonable doubt. We are of the view that upon the material placed on record it would be unsafe  to  convict  the  appellants.  They are  certainly entitled to the benefit of doubt.” (emphasis added)

12. In  Ashok alias Dangra Jaiswal v.  State of Madhya Pradesh4, it

was observed as under: -

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

10. The seizure of  the alleged narcotic substance is shown to have been made on 8-3-2005, at 11.45 in the evening. The samples taken from the seized substance were sent to the FSL on 10-3-2005,  along with the

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draft,  Ext.  P-31.  The  samples  sent  for  forensic examination were, however, not deposited at the FSL on that 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 of the draft. The samples were sent back to  the FSL on 14-3-2005,  after necessary corrections  in  the  draft  and/or  giving  reply  to  the query 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, till their deposit in the FSL on 14-3-2005, it is not clear where the samples were laid or  were  handled by how many people  and in  what ways.

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

12. Last but not the least, the alleged narcotic powder seized from the possession of the accused, including the  appellant  was  never  produced  before  the  trial court as a material exhibit and once again there is no explanation for its non-production. There is, thus, no evidence  to  connect  the  forensic  report  with  the substance that was seized from the possession of the appellant or the other accused.”

Relying on the decision of this Court in  Jitendra3, the benefit of

doubt was given and the accused was acquitted.

13. In  Vijay Jain  v.  State of Madhya Pradesh5, it was submitted on

behalf of the accused, as is evident from para 4 of the decision, that there

was non-production of the contraband goods.  This Court dealt with the

matter as under:-

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“9. Para 96 of the judgment of this Court in Noor Aga case2 on which the learned counsel for the State very strongly relies is quoted hereinbelow: (SCC p. 464)

“96.  Last  but  not  the  least,  physical  evidence relating  to  three  samples  taken  from  the  bulk amount of heroin was also not produced. Even if it  is accepted for the sake of argument that  the bulk  quantity  was  destroyed,  the  samples  were essential to be produced and proved as primary evidence for the purpose of establishing the fact of recovery of heroin as envisaged under Section 52-A of the Act.”

Thus in para 96 of the judgment in  Noor Aga case2

this Court has held that the prosecution must in any case  produce  the  samples  even  where  the  bulk quantity  is  said  to  have  been  destroyed.  The observations of this Court in the aforesaid paragraph of  the  judgment  do  not  say  anything  about  the consequence  of  non-production  of  the  contraband goods  before  the  court  in  a  prosecution  under  the NDPS Act. (Emphasis added)

10. On the other hand, on a reading of this Court’s judgment in  Jitendra case3,  we find that  this  Court has taken a view that in the trial for an offence under the NDPS Act, it was necessary for the prosecution to establish  by  cogent  evidence  that  the  alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials  as  material  objects  and  where  the contraband materials alleged to have been seized are not  produced  and  there  is  no  explanation  for  the failure  to  produce  the  contraband  materials  by  the prosecution,  mere  oral  evidence  that  the  materials were seized from the accused would not be sufficient to  make  out  an  offence  under  the  NDPS  Act particularly  when  the  panch  witnesses  have  turned hostile.  Again,  in  Ashok4 this  Court  found  that  the alleged narcotic powder seized from the possession of the accused was not produced before the trial court as material exhibit and there was no explanation for its

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non-production  and  this  Court  held  that  there  was therefore no evidence to connect the forensic report with  the  substance  that  was  seized  from  the possession of the appellant.   12. We are thus of the view that as the prosecution has not produced the brown sugar before the Court  and has  also  not  offered  any  explanation  for  non- production of the brown sugar alleged to have been seized from the appellants and as the evidence of the witnesses  (PW 2  and  PW 3)  to  the  seizure  of  the materials does not establish the seizure of the brown sugar  from  the  possession  of  the  appellants,  the judgment of the trial court convicting the appellants and the judgment of the High Court maintaining the conviction are not sustainable.” (emphasis added)

14. In a recent decision dated 30th July, 2019 of this Court in  Vijay

Pandey v. State of Uttar Pradesh6 the benefit was extended on the ground

that there was no co-relation between the seized samples and one that was

tested.   Reliance was placed on the observations of this Court  in  Vijay

Jain5 which  inter alia stated that  there was no evidence to connect the

forensic report that the substance that was seized from the possession of

the accused.  The relevant observations are to be found in para 8 of the

decision:

“8.   The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself.  In the circumstances the  mere  production  of  a  laboratory  report  that  the samples  tested  was  narcotics  cannot  be  conclusive proof  by  itself.   The  sample  seized  and  that  tested

6 Criminal  Appeal  No.1143  of  2019  @  SLP(Crl)  No.1273  of  2019  decided  on 30.07.2019

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have  to  be  co-related.   The  observations  in  Vijay Jain5, as follows are considered relevant:

10. On the other hand, on a reading of this Court’s judgment in  Jitendra case3,  we find that  this  Court has taken a view that in the trial for an offence under the NDPS Act, it was necessary for the prosecution to establish  by  cogent  evidence  that  the  alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials  as  material  objects  and  where  the contraband materials alleged to have been seized are not  produced  and  there  is  no  explanation  for  the failure  to  produce  the  contraband  materials  by  the prosecution,  mere  oral  evidence  that  the  materials were seized from the accused would not be sufficient to  make  out  an  offence  under  the  NDPS  Act particularly  when  the  panch  witnesses  have  turned hostile.  Again,  in  Ashok4 this  Court  found  that  the alleged narcotic powder seized from the possession of the accused was not produced before the trial court as material exhibit and there was no explanation for its non-production  and  this  Court  held  that  there  was therefore no evidence to connect the forensic report with  the  substance  that  was  seized  from  the possession of the appellant.” (emphasis added)

15. It is true that in all the aforesaid cases submission was advanced on

behalf of the accused that failure to produce contraband material before the

Court ought to result in acquittal of the accused.  However in none of the

aforesaid  cases  said  submission  singularly  weighed  with  this  Court  to

extend benefit of acquittal only on that ground.  As is clear from decision

of this Court in Jitendra3, apart from the aforesaid submission other facets

of the matter also weighed with the Court which is evident from paras 7 to

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9  of  the  decision.   Similarly  in  Ashok4,  the  fact  that  there  was  no

explanation where the seized substance was kept (para 11) and the further

fact  that  there  was no evidence to connect  the forensic  report  with the

substance that was seized, (para 12) were also relied upon while extending

benefit of doubt in favour of the accused.  Similarly, in Vijay Jain5, the fact

that the evidence on record did not establish that the material was seized

from the appellants, was one of the relevant circumstances.  In the latest

decision of this Court in  Vijay Pandey6, again the fact that there was no

evidence to connect the forensic report with the substance that was seized

was also relied 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 singularly been

found to be sufficient to grant the benefit of acquittal.   

16. Turning to the facts in the present matter, the evidence of PW15

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 of these 3500

grams thus taken out, two samples of 500 grams were independently sealed

while rest 2500 grams were also sealed in a separate pouch.  These samples

were marked A, B and C respectively.  The bags were also independently

sealed and taken in custody and Exbt-5 seizure memo which recorded all

these facts was also signed by the accused.  We have gone through the

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cross-examination of the witness.  At no stage even a suggestion was put to

the witness that either the signatures of the accused were taken by fraud,

coercion  or  mis-representation  or  that  the  signatures  were  not  of  the

accused or that they did not understand the purport of the seizure memo.  It

would therefore be difficult to even suggest that the seizure of contraband

weighing 223 kgs was not proved by the prosecution.  In our view this fact

stood conclusively proven.

17. If the seizure of the material is otherwise proved on record and is

not even doubted or disputed the entire contraband material need not be

placed before this Court.  If the seizure is otherwise not in doubt, there is

no requirement that the entire material ought to be produced before the

Court.   At times the material  could be so bulky,  for  instance as in the

present material when those 7 bags weighed 223 kgs that it may not be

possible and feasible to produce the entire bulk before the Court.  If the

seizure is otherwise proved, what is required to be proved is the fact that

the samples taken from and out of the contraband material were kept intact,

that when the samples were submitted for forensic examination the seals

were  intact,  that  the  report  of  the  forensic  experts  shows  the  potency,

nature  and  quality  of  the  contraband  material  and  that  based  on  such

material, the essential ingredients constituting an offence are made out.

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18. In the aforesaid premises the conclusion drawn by the High Court

was completely unsustainable and the High Court erred in extending the

benefit of acquittal to the respondent.  We, therefore, allow this appeal, set

aside the view taken by the High Court and restore the order of conviction

as recorded by the trial court against the respondent in its judgment and

order dated 01.08.2015.  The minimum sentence of imprisonment for the

offence punishable under Section 8 read with 15 of the NDPS Act is 10

years.

Considering  the  facts  on  record,  in  our  view  the  appropriate

sentence would be Rigorous  Imprisonment for  10 years  as  substantive

sentence.   We  order  accordingly,  keeping  the  other  parts  of  sentence

namely sentence  of  fine  and sentence  in  default  of  payment  of  fine  as

ordered by the trial court, intact and unchanged.

19. The appeal stands allowed in aforesaid terms.  

20. We direct the respondent to surrender before the concerned Police

Station within seven days from today, failing which, the respondent shall

immediately be taken in custody by the concerned police station.

Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016 State of Rajasthan vs. Sahi Ram

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A copy of this order of this Court shall be sent to the concerned

CJM as well as the Police Station for intimation and compliance.

………………………..J. [Uday Umesh Lalit]

………………………..J. [Vineet Saran]

New Delhi; September 27, 2019.