REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1438 OF 2008

ASHOK @ DANGRA JAISWAL … APPELLANT VERSUS

STATE OF M.P. … RESPONDENT

J U D G M E N T

Aftab Alam, J.

1. The appellant stands convicted under Sections  8/21(b)  of  the  Narcotics  Drugs  &  Psychotropic  Substance  Act,  1985  (hereinafter  referred  to  as  “the NDPS Act”) and sentenced to undergo rigorous  imprisonment for 7 years and a fine of Rs.25,000/-  with the direction that in default of payment of  fine, he would undergo rigorous imprisonment for a  further period of one year.  

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2. On March 8, 2005, at about 3.30 p.m. one Anil  Kumar  Jharkhadia  (PW.10),  Town  Inspector,  Police  Station  Kareli  received  information  that  the  appellant,  the  owner  of  Satyanarain  Talkies  is  engaged  in  selling  of  smack  powder  (heroin  in  common  parlance)  from  his  cinema  hall.  After  completing  the  formalities,  the  police  party  proceeded  to  the  cinema  hall  where  the  Town  Inspector, complying with the mandate of the law,  subjected the appellant to a personal search. The  search, made under the Search Memo, Exhibit P.17,  yielded  three  packets  from  the  pocket  of  the  ‘kurta’ worn by the appellant.  The plastic packets  contained smack powder, the total weight of which  was  175  grams.  The  suspected  narcotic  recovered  from the appellant was seized under seizure memo,  Exhibit P.22.  From the seized powder, two samples  of five grams each were taken and were put in two  separate sealed packets marked as Article A and A1.  

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The remainder 165 gram was put in a separate sealed  packet marked as Article A-2.  3. Following  the  appellant,  his  two  employees,  namely Kanki @ Vishnu and Guddu Maharaj, who were  present there at that time, were also subjected to  personal search and from the possession of Kanki  100 grams and from Guddu Maharaj 35 grams smack  powder was recovered. Samples were similarly taken  from  the  recoveries  made  from  those  two  accused  also.      4. The samples taken from the smack powder alleged  to  have  been  recovered  from  the  three  accused,  including  the  appellant  were  sent  to  Forensic  Science Laboratory vide draft, Exhibit P.31. The  FSL report, Exhibit P.32 confirmed that the samples  contained  diacetylmorphine (heroin). On completion  of  investigation,  charge-sheet  was  submitted  against  all  the  three  accused,  including  the  appellant on 31.3.2005. Charges were framed against  the accused and they were put on trial.  The trial  

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court by judgment and order dated 9.11.2005 passed  in  Special  Case  No.4/2005  held  all  the  three  accused, including the appellant guilty of offences  punishable under Sections 8/21(b) of the NDPS Act  and sentenced them as noted above.  5. Against the judgment of the trial court, the  appellant  preferred  Criminal  Appeal  No.2511/2005  before  the  High  Court.  Another  appeal  being  Criminal Appeal no.86 of  2006 was filed by Guddu  Maharaj. There is, however, no indication that the  third accused Kanaki took the matter in appeal. The  High Court dismissed both the appeals by judgment  and order dated April 17, 2008.  6. The appellant alone has come in appeal against  the judgment of the High Court. 7. On  hearing  Mr.  Akshat  Shrivastava,  learned  counsel  for  the  appellant  and  Ms.  Vibha  Datta  Makhija, learned counsel for the State and on going  through the materials on record, we find there are  several features in this case that make it very  

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difficult for us to sustain the conviction of the  appellant.  8. To  begin  with,  there  were  two  independent  witnesses of the seizure, namely, Ajay Purohit and  Udaipal Singh whose signatures were taken on the  seizure  memos,  Exhibits  P.22  to  24.   They  were  examined  before  the  Court  as  PWs  8  and  9  respectively. Neither of the two supported the case  of the prosecution. PW.8 was, as a matter of fact,  quite emphatic in his denial of any recovery having  been made from the appellant or the other accused  in his presence. Both were declared hostile by the  prosecution.  Both the trial court and the High  Court had, therefore, to rely upon the testimony of  R. K. Jharkhandia, PW 10 who was the Station House  Officer at the material time and who had conducted  the raid to accept the prosecution case of recovery  of the suspected narcotic from the accused. 9. The seizure witnesses turning hostile may not  be  very  significant,  as  it  is  not  an  uncommon  

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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 March 8, 2005, at  11:45 in the evening. The samples taken from the  seized  substance  were  sent  to  FSL  on  March  10,  2005,  along  with  the  draft,  Exhibit  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 March 12,  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  March  14,  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 March 8, 2005, till  their deposit in the FSL on March 14, 2005, it is  

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not  clear  where  the  samples  were  laid  or  were  handled by how many people and in what ways.  11. The FSL report came on March 21, 2005, and on  that  basis  the  police  submitted  charge-sheet  against  the  accused  on  March  31,  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  May  28,  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.

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13. It  may  be  noted  here  that  in  Jitendera  and  another  v.  State of M.P., (2004) 10 SCC 562, on  similar  facts  this  Court  held  that  the  material  placed on record by the prosecution did not bring  home  the  charge  against  the  accused  beyond  reasonable doubt and it would be unsafe to maintain  their  conviction  on  that  basis.  In  Jitendra  (supra), the Court observed and held as under:-

“The  evidence  to  prove  that  charas  and  ganja were recovered from the possession  of the accused consisted of the evidence  of  the  police  officers  and  the  panch  witnesses.   The  panch  witnesses  turned  hostile.  Thus, we find that apart from  the testimony of Rajendra Pathak (PW 7),  Angad Singh (PW 8) and Sub-Inspector D.J.  Rai  (PW  6),  there  is  no  independent  witness as to the recovery of the drugs  from  the  possession  of  the  accused.  The  charas  and  ganja alleged  to  have  been  seized from the possession of the accused  were  not  even  produced  before  the  trial  court,  so  as  to  connect  them  with  the  samples  sent  to  the  Forensic  Science  Laboratory.  There is no material produced  in  the  trial,  apart  from  the  interested  testimony of the police officers, to show  that the charas and ganja were seized from  the possession of the accused or that the  samples  sent  to  the  Forensic  Science  Laboratory  were  taken  from  the  drugs  seized from the possession of the accused.  

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Although the High Court noticed the fact  that the charas and ganja alleged to have  been  seized  from  the  custody  of  the  accused  had neither been produced in the  court, nor marked as articles, which ought  to have been done, the High Court brushed  aside the contention by observing that it  would not vitiate the conviction as it had  been proved that the samples were sent to  the Chemical Examiner in a properly sealed  condition  and  those  were  found  to  be  charas and  ganja.   The  High  Court  observed,  “non-production  of  these  commodities before the court is not fatal  to the prosecution.  The defence also did  not  insist  during  the  trial  that  these  commodities should be produced”.  The High  Court relied on Section 465 CrPC to hold  that non-production of the material object  was a mere procedural irregularity and did  not cause prejudice to the accused. 6. In  our  view,  the  view  taken  by  the  High Court is unsustainable.  In the trial  it  was  necessary  for  the  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  

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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.”

14. The decision in Jitendra (supra) applies to the  facts of this case with full force. 15. We,  accordingly,  hold  that  the  appellant  is  entitled to the benefit of doubt and  acquit him of  the charges and set aside the judgments and orders  passed by the trial court and the High Court.   16. At this stage, it may be noted that though the  other two accused, namely, Kanki @ Vishnu and Guddu  Maharaj are not before us, we see no reason why the  benefit of this judgment may not be extended to  them  as  well.  From  the  possession  of  Kanki  @  

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Vishnu, the recovered quantity was 100 grams and  from Guddu Maharaj 35 grams.  All the three accused  including the appellant were tried together and the  other two accused Kanki @ Vishnu and Guddu Maharaj  have  also  been  given  the  same  sentence  as  the  appellant. The lapses in the prosecution and the  facts and circumstances that have been noted above  and that have weighed with us for setting aside the  conviction of the appellant apply equally to the  case of Kanki @ Vishnu and Guddu Maharaj. It will  be unjust, therefore, to let them rot in jail even  while  allowing  the  appeal  preferred  by  the  appellant. (See:  Raja Ram and others  v. State of  M.P.,  (1994)  2  SCC  568,  Dandu  Lakshmi  Reddy v.  State of A.P., (1999) 7 SCC 69,  State of Haryana  and others v.  Sumitra Devi and others, (2004) 12  SCC 322, Mangoo v. State of M.P., (2008) 8 SCC 283,  Bachan Singh v. State of Bihar, (2008) 12 SCC 23)  We, accordingly, direct that their conviction and  sentence be also set aside and they too along with  

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the appellant be released forthwith unless anyone  of them is required in connection with any other  case.  17. The appeal is, accordingly, allowed.  

………………………………………………J. (Aftab Alam)

………………………………………………J. (R.M. Lodha)

New Delhi; April 5, 2011.  

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