REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2182 OF 2010

MOHINDER SINGH        ...Appellant

Versus

THE STATE OF PUNJAB  ...Respondent

J U D G M E N T

R. BANUMATHI, J.

This  appeal  arises  out  of  the  judgment  dated  30.06.2010

passed by the High Court of Punjab and Haryana at Chandigarh in

Criminal  Appeal  No.199-DBA of  2002  in  and  by  which  the  High

Court reversed the judgment of acquittal of the appellant/accused

and  convicted  him  under  Section  18  of  the  Narcotic  Drugs  and

Psychotropic Substances Act, 1985 (NDPS Act) and sentenced him

to undergo ten years imprisonment.   

2. Briefly stated case of the prosecution is that on 30.04.1998,

Joginder  Singh,  SI,  Police  Station Sadar  Ludhiana (PW-2)  along

with other police officials was checking the vehicles on the bridge of

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Gill  Canal  towards the side of  village Gill.   Meanwhile,  at  about

7.00-7.30  pm,  appellant  Mohinder  Singh  came  on  his

scooter No.PB-10B-2413.  A signal was given to stop the scooter

and the appellant/accused stopped his scooter.  It was suspected

that  some  contraband  substance  was  being  carried  in  the  bag.

Appellant/accused  was  informed  of  his  right  of  search  before  a

Gazetted  Officer  or  a  Magistrate.   Joginder  Singh  (PW-2)  called

Gurjit  Singh,  DSP  (PW-4)  and  the  bag  carried  by  the

appellant/accused was searched in his presence and the substance

bag was found to be “opium”.   On weighment, it was found to be 7

kilos and 40 gms.  Two samples from the recovered “opium”, each

weighing  20  gms  were  taken  and  sealed  separately  having

monogram ‘JS’ and ‘GS’ and taken into possession  vide recovery

memo  Ext.-PE.    Case  property  along  with  two  samples  was

deposited  with  Baldev  Singh  MHC  (PW-5).   Next  day  i.e.  on

01.05.1998, the case property as well as the sample parcels were

produced before the Area Magistrate who is said to have initialled

the case property  and the sample parcels.   The sample parcels

were sent to Forensic Science Laboratory (FSL) and subjected to

chemical analysis and the contents were found to be “opium” in FSL

report  vide Ext.-P1.  After completion of the investigation, charge

sheet was filed against appellant under Section 18 of the NDPS Act.

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3. To  prove  the  guilt  of  the  accused,  the  prosecution  has

examined  Constable  Hardev  Singh  (PW-1),  SI  Joginder  Singh

(PW-2), ASI Harbhajan Singh (PW-3), DSP Gurjit Singh (PW-4) and

Baldev Singh, MHC (PW-5).  The appellant was examined under

Section  313  Cr.P.C.  to  explain  the  incriminating  evidence

circumstance appearing in the prosecution evidence and he denied

all of them.

4. The trial court acquitted the appellant inter alia on the ground

that there was non-compliance of Section 50 of the NDPS Act.  The

trial court further held that no order of the Magistrate was proved to

show that the case property was produced before the court, was

brought in evidence to show that the seal of the sample sent to FSL

tallied with the seal of the contraband, and it cannot thus be said

that the evidence regarding such production of case property before

the Magistrate was trustworthy.  Being aggrieved by the acquittal,

the State has preferred appeal before the High Court.   

5. Placing  reliance  upon  State  of  Punjab  v.  Baldev  Singh

(1998) 2 SCC 724, the High Court held that recovery of contraband

from a bag/attache which the accused was carrying in his hands,

would not amount to search of person and as such Section 50 of

the NDPS Act will not apply.   Based on the evidence of SI Joginder

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Singh (PW-2)  and Harbhajan Singh (PW-3),  the High Court  held

that  the  case  property  parcels  of  the  samples  and  the  samples

having the seals of ‘JS’ and ‘GS’ were duly produced before the

Magistrate and on those findings, the High Court reversed the order

of  acquittal  and convicted the appellant  under  Section 18 of  the

NDPS Act and sentenced him to undergo ten years imprisonment.

Being aggrieved, the appellant/accused has preferred this appeal.  

6. Mr. Harkesh Singh, learned counsel for the appellant inter-alia

submitted that since the contraband alleged to have been seized

from the accused was not produced before the trial court, conviction

of  the  appellant  cannot  be  sustained.  Learned  counsel  for  the

appellant  placed  reliance  upon  Ashok alias  Dangra  Jaiswal  v.

State of Madhya Pradesh (2011) 5 SCC 123 to contend that where

the narcotic  drug or  the psychotropic  substance seized from the

possession of the accused is not produced before the Magistrate

and  when  there  is  no  evidence  to  connect  the  forensic  science

report  with  the  drug  or  the  substance  that  was  seized  from the

possession of  the accused in  such a  case the conviction of  the

appellant/accused is not sustainable.

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7. Learned counsel for the State has submitted that from the oral

evidence of  SI  Joginder  Singh (PW-2)  and ASI  Harbhajan Singh

(PW-3), the production of the contraband seized from the accused

before  the  court  has  been  proved  by  the  prosecution.  It  was

submitted that the evidence and materials on record amply proves

the production of  the contraband along with  the sample packets

before the Magistrate. It was submitted that the trial court was not

right in acquitting the accused and the High court rightly set aside

the  acquittal  and  the  impugned  judgment  does  not  warrant  any

interference.

8. We  have  considered  the  submissions  and  perused  the

impugned judgment, evidence and other materials on record. We

have also taken pains to look into the original  records that  were

called for from the trial court.

9. On behalf  of the appellant,  contention was raised as to the

non-compliance of Section 50 of the NDPS Act to submit that the

safeguards stipulated under Section 50 were not complied with. In

the present case, the appellant was carrying the contraband-about

seven Kilos  of  “opium” in  the bag which he was carrying in  the

scooter. Carrying the contraband in the scooter/bag cannot be said

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to be ‘by the person’ necessitating compliance of Section 50 of the

NDPS Act  for  personal  search.  Reference in  this  regard  can  be

made to the decision in  State of H.P. v. Pawan Kumar (2005) 4

SCC 350.

10. So  far  as  the  contention  regarding  production  of  the

contraband seized from the accused,  in  his  evidence,  Harbhajan

Singh (PW-3) stated that on 01.05.1998, he produced the sample

parcels and the case property parcels with the seal and the sample

seals before the Judicial Magistrate, Ludhiana and the Magistrate

has  recorded  the  seals  tallied  with  the  specimen  impression.

Harbhajan  Singh  (PW-3)  further  stated  that  after  return  of  the

samples and the parcels from the court, the same were lodged by

him to the Malkhana on 01.05.1998 itself. Baldev Singh (PW-5) the

then Malkhana in charge though orally stated about the deposit of

the contraband in the Malkhana, but Baldev Singh (PW-5) has not

produced Register No.19 maintained in the Malkhana to show the

relevant entry in Register No.19 as to deposit of the case property in

the  Malkhana.  Oral  evidence  of  Harbhajan  Singh  (PW-3)  and

Baldev Singh (PW-5) as to the deposit  of  the contraband seized

from  the  accused  with  Malkhana  is  not  corroborated  by  the

documentary evidence namely the entry in Register No.19.

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11. After referring to the oral evidence of Joginder Singh (PW-2)

and  Harbhajan  Singh  (PW-3),  the  trial  court  in  para  (14)  of  its

judgment has recorded the finding that no order of the Magistrate to

prove the production of the contraband before the Magistrate was

available on the file.  After recording such observation, the trial court

held  that  the  oral  evidence  regarding  production  of  the  case

property  before  the  Magistrate  was  not  trustworthy  and  not

acceptable. In the absence of the order of the Magistrate showing

that the contraband seized from the accused was produced before

the Magistrate, the oral evidence adduced that the contraband was

produced before the Magistrate cannot form the basis to record the

conviction.

12. For proving the offence under the NDPS Act, it is necessary

for the prosecution to establish that the quantity of the contraband

goods allegedly seized from the possession of the accused and the

best evidence would be the court records as to the production of the

contraband before the Magistrate and deposit of the same before

the  Malkhana  or  the  document  showing  destruction  of  the

contraband.  

13. In  Vijay Jain v. State of Madhya Pradesh (2013) 14 SCC

527, this Court reiterated the necessity of production of contraband

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substances  seized  from  the  accused  before  the  trial  court  to

establish that the contraband substances seized from the accused

tallied with the samples sent to the FSL.  It was held that mere oral

evidence to establish seizure of  contraband substances from the

accused is not sufficient.  It was held as under:-

“10. On the other hand, on a reading of this Court’s judgment in Jitendra v. State of M.P. (2004) 10 SCC 562, 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  Ashok v. State of M.P. (2011) 5 SCC 123, 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.”

14. The High Court appears to have gone by the oral evidence of

Joginder  Singh  (PW-2)  and  Harbhajan  Singh  (PW-3)  that  the

contraband allegedly seized from the accused was produced before

the Magistrate. When the trial court which is in possession of the

case  records  recorded  a  finding  that  there  is  no  order  of  the

Magistrate  showing  the  production  of  the  contraband  before  the

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court and acquitted the accused on that basis, in our view, the High

Court ought not to have interfered with the said order of acquittal.

15. In an appeal against acquittal, the High Court will not interfere

unless there are substantial and compelling reasons to reverse the

order of acquittal.  The mere fact that on reappreciation of evidence

the appellate court is inclined to arrive at a conclusion which is at

variance with the trial  court,  the same cannot  be the reason for

interference with the order of acquittal.   After referring to various

judgments  in  Chandrappa  and  others  v.  State  of  Karnataka

(2007) 4 SCC 415, this Court summarised the general principles

regarding the powers of the appellate court while dealing with an

appeal against the order of acquittal and held as under:-

“42. From  the  above  decisions,  in  our  considered  view,  the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1)  An  appellate  court  has  full  power  to  review, reappreciate  and reconsider  the  evidence upon which  the order of acquittal is founded.

(2)  The  Code  of  Criminal  Procedure,  1973  puts  no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3)  Various  expressions,  such  as,  “substantial  and compelling  reasons”,  “good  and  sufficient  grounds”,  “very strong  circumstances”,  “distorted  conclusions”,  “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court  in an appeal  against acquittal.  Such phraseologies  are  more  in  the  nature  of  “flourishes  of language” to emphasise the reluctance of an appellate court to  interfere  with  acquittal  than  to  curtail  the  power  of  the court  to  review  the  evidence  and  to  come  to  its  own conclusion.

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(4) An appellate court, however, must bear in mind that in case of acquittal,  there is double presumption in favour of the  accused.  Firstly,  the  presumption  of  innocence  is available to him under the fundamental principle of criminal jurisprudence  that  every  person  shall  be  presumed to  be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5)  If  two  reasonable  conclusions  are  possible  on  the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”

The same principles were reiterated in number of judgments viz.

Jugendra Singh v.  State of Uttar Pradesh  (2012)  6 SCC 297,

State of Uttar Pradesh v. Ram Sajivan and Others (2010) 1 SCC

529, Bhaskar Ramappa Madar and others v. State of Karnataka

(2009)  11  SCC  690,  Chandrappa  and  others  v.  State  of

Karnataka (2007) 4 SCC 415 and other judgments.

16. Considering the case in hand, the findings of the trial  court

cannot be said to be ‘distorted conclusions’ warranting interference.

Based  on  the  oral  evidence  of  Joginder  Singh  (PW-2)  and

Harbhajan  Singh  (PW-3),  the  High  Court  ought  not  to  have

interfered  with  the  order  of  acquittal  and  the  conviction  of  the

appellant under Section 18 of the NDPS Act cannot be sustained.

17. In the result, the conviction of the appellant under Section 18

of the NDPS Act and the sentence of imprisonment imposed on him

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is set aside and this appeal is allowed and the appellant is acquitted

of the charge.  

.…….…………...………J. [RANJAN GOGOI]

…………….……………J.  [R. BANUMATHI]

…………….……………J.    [NAVIN SINHA]

New Delhi; August 14, 2018

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