REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2172 OF 2011

THAN KUNWAR    ... APPELLANT

VERSUS

STATE OF HARYANA        ... RESPONDENT

J U D G M E N T

K.M. JOSEPH, J.

1. The appellant was accused No. 1 before the Trial

Court and the appellant before the High Court, which,

by the impugned judgement, confirmed the judgment of

the Trial Court and convicted her under Section 18 of

the Narcotics Drugs and Psychotropic Substances Act,

1985 (NDPS Act).

2. The prosecution case, briefly put, is as follows:

On  10.04.2004,  ASI-PW7  and  other  police

officials  noticed  the  appellant  and  another

accused  approaching  from  8,  Marla  Colony

carrying a bag in their hands. On seeing the

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police party, the accused allegedly turned back

and  started  walking  briskly.  This  aroused

suspicion in the mind of the ASI. He intercepted

them. The bag was suspected to contain narcotic

items. The accused were informed that if they so

desired, they could have search of the bag in

the  presence  of  a  Gazetted  Officer  or

Magistrate. The appellant desired search by a

Gazetted Officer. The DSP came to the spot. On

his directions, the search was carried out.  The

bag contained on weighment 6 kilograms 300 grams

of opium.  Samples were taken. Thereafter, the

formal FIR was registered. On receipt of the FSL

report and completing investigation, the charge-

sheet  was  filed.  Prosecution  examined  8

witnesses.  The  appellant  denied  incriminating

circumstances,  in  the  questioning  held  under

Section 313 of the Code of Criminal Procedure.

As noticed earlier, the High Court has affirmed

the appellant’s conviction.

3. We have heard learned Counsel for the appellant.

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THE CONTENTIONS OF THE APPELLANT  

4. It is firstly pointed out that Shri Om Parkash,

DSP  -  Gazetted  Officer,  (in  whose  presence,  the

search was alleged by the prosecution was conducted)

was present at the same time in respect of another

case.  In  other  words,  he  would  submit  that  in

connection with this case in his testimony, he has

stated that he reached the spot at about 01:30 P.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 been produced in the Court,

tending to show that he was present from 12:30 P.M.

on the very same date in connection with another case

and he remained there till 02:30 P.M. The question

is, therefore, as to how the same person under whose

gaze, the search was allegedly carried out, could be

present at two different places at the same time.

This brought under a cloud, the entire prosecution

case runs the argument. Next, it is contended that

the contraband, allegedly  6 kilograms 300 grams, was

not  produced  before  the  Court.  This  vitiated  the

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conviction. In this regard, reliance was placed on

the following judgments of this Court:

(1) Jitendra and another v. State of M.P.  1;

(2) Ashok alias Dangra Jaiswal v. State of Madhya

Pradesh  2; and

(3) Gorakh Nath Prasad v. State of Bihar  3.

5. No  doubt,  learned  Counsel  also  draws  our

attention to the judgment of this Court in State of

Rajasthan v.  Sahi  Ram  4,  where  a  contra  view  is

essentially taken based on the fact that if a large

quantity of contraband is involved, it may not be

necessary to produce.

6. The next contention urged by learned Counsel for

the appellant is that, though, it may be true that

for searching the bag carried out by the accused, it

may not be necessary to comply with the requirements

of  Section  50  of  the  Act  but  if  there  is  also  a

personal search, Section 50 is attracted.  In this

context, he drew our attention to the judgment of

1 (2004) 10 SCC 562 2 (2011) 5 SCC 123 3 (2018) 2 SCC 305 4 (2019) 10 SCC 649

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Bench of two learned Judges reported in  Dilip and

another v. State of M.P.  5. Therein, it is, inter alia,

stated as follows:  

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

 7. In  fact,  when  it  was  pointed  out  by  learned

Counsel for the appellant that the aforesaid view has

been disapproved by a Bench of three learned Judges

in the decision in State of Punjab v. Baljinder Singh

and another  6, he pointed out that, in fact, a Bench of

three learned Judges has come to rely on the decision

by the Bench of two learned Judges in the judgment in

SK. Raju alias Abdul Haque alias Jagga v.  State of

West Bengal  7.  

8. The last contention by the learned Counsel for

the  appellant  is  that  the  prosecution  has  not

associated any independent witness in support of its

5 (2007) 1 SCC 450 6 (2019) 10 SCC 473 7 (2018) 9 SCC 708

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case.  He  points  out  by  referring  to  the  judgment

itself that there were witnesses available but still

no witnesses other than the official witnesses have

been enlisted in support of the prosecution case.  

9. Per contra, learned Counsel for the State would

submit that the time of arrival of Sh. Om Parkash,

Gazetted Officer (DSP) has not been questioned. He

further pointed out that the Court must bear in mind

the lapse of time from the date of incident to the

time of examination of the witness. Discrepancy in

the timing should not be allowed to discredit the

testimony of the witness. Still further, he submits

that this is also a case where contraband articles

were recovered from within the bag carried by the

accused. For carrying out search of a bag as distinct

from  the  person  of  the  accused,  there  is  no

requirement to comply with Section 50. As regards,

the contention that the contraband articles were not

produced before the Court, it is submitted that it is

not  the  law  that  the  contraband  articles  must  be

produced.  There  is  no  provision  in  the  Act  which

mandates  its  production.  Still  further,  he  would

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point  out  that  the  appellant  has  not  raised  this

complaint before the Trial court or the High Court.

There is no dispute raised by Counsel, in fact, that

the  contraband  article,  as  such,  is  not  produced.

However, he pointed out that there is the FSL report.

He supports the judgment of the High Court in regard

to the non-production of any independent witness.  

10. First question which falls for our consideration

is whether there is merit in the contention of the

appellant that no independent witness is produced. In

this regard, the testimony of PW-6 is relied upon. In

his cross-examination, he has, inter alia, stated as

follows:  

   It  was  a  busy  place;  people  were

passing  thereby.  Some  persons  from  the

public were called but they were reluctant

but no action was taken. Resident of Kabri

was  asked  to  join  the  investigation.

Sunil, Gulshan, were also do so. They were

there at about 1:00 P.M. I did not know

prem was Sarpanch or not of the village.

They stopped for about 5 minutes at the

spot.  Some  people  were  called  from  the

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nearby shop but I do not know their names

of the name of the shop.  

11. It is, therefore, the case of the appellant, this

is not a case where independent witnesses could not

have been associated with the investigation 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 the discrepancy

brought out in the testimony of the Gazetted Officer,

viz., the DSP who was allegedly called in by the ASI

when  upon  being  informed  about  the  right  under

Section  50,  the  accused  demanded   compliance  of

Section  50  and  on  a  telephone  message,  the  DSP

arrived at the spot. In his deposition, it is true

that the Gazetted Officer (DSP) has deposed,  inter

alia, as follows:

 He received a telephone call on his

mobile phone from ASI. It was at about

01:10  P.M.,  he  received  the  call.  He

reached the spot at about 01:30 P.M.

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  The ASI examined as PW-7, has stated

that the accused was apprehended at about

01:00 P.M. and they remained at the spot

till 04:30 P.M. Notice under Section 50 of

the Act, was given at about 01:05 P.M..

Message to the DSP was sent telephonically

by about 01:05 P.M. He does not remember

from the name of the shop from which the

telephone call was made. The DSP/Gazetted

Officer was present in the office at that

time. The DSP came at about 01:20 P.M. He

remained at the spot till 03.00 P.M.  

13. The  case  of  the  appellant  is  based  on  the

following testimony which was given by the very same,

DSP in another case, which has been marked in the

Trial Court. In the said case (viz.,  State v.  Heera

Lal), he states, inter alia, as follows:

   On 10.04.2004, he was posted as DSP

Head Quarters, Panipat. He was present in

his office at about 12 Noon.  He deposed to

have  received  a  telephone  call  from  a

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police officer that notice under Section 50

has been served and the person apprehended

in  the  said  case  opted  to  have  a  search

before a 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-examination

that  he  remained  at  the  spot  upto  02:30

P.M.  He  reached  the  spot  or  place  of

occurrence at about 12:20 PM.  The distance

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 has deposed that he reached the spot at

about 01:30 P.M. and the ASI has deposed that he

remained at the spot till 03:00 P.M. The DSP has

deposed  in  connection  with  another  case  that  he

reached the spot of that investigation in connection

with that case at about 12:20 P.M. and remained there

till 02:30 P.M. The argument, therefore, is that from

the evidence, the DSP must be present at the same

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time at two different places. This clearly rendered

prosecution case suspect and benefit of doubt should

at any rate must go to the accused.   

15. As  regards  the  contention  of  violation  of

Section 50 it is based on their being personal search

of the accused. PW 6, the ASI has inter alia stated

as follows:   

Personal search of accused was taken

by the lady constable under the shadow of

the jeep.  I do not remember…  I do not

remember the direction of the jeep under

which the personal search of the accused

was taken.  The lady constable has alone

taken  away  the  accused  for  personal

search….  I do not remember whether at the

time of personal search driver of the jeep

was in the jeep or not.  

16. Learned  Counsel  for  the  appellant  drew  our

attention  to  the  judgment  of  this  Court  in

Dilip (supra).   Therein,  a  Bench  of  two  learned

Judges held, inter alia, as follows:

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  "16. In this case, the provisions of

Section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the person of the appellants was also searched, it was obligatory on the part of PW 10 to comply with the said provisions. It was not done.”

17. No doubt we notice the judgment of this Court

rendered  by  a  Bench  of  three  learned  Judges  in

SK. Raju (supra).  Therein, the Court referred 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 the requirement of

mandatory  compliance  with  Section  50

is  attracted  irrespective  of  whether

contraband  is  recovered  from  the

person of the detainee or not.”

18. In the said case, the Court went on to hold that

requirement of Section 50 was complied with.  However,

we  notice  a  later  development  in  the  form  of  a

judgment rendered by a Bench of three learned judges

touching upon the correctness of the view expressed in

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Dilip (supra)  as  contained  in  paragraph  16  of  the

judgment.

19. In  Baljinder  Singh (supra),  this  Court

elaborately considered the matter with reference to

the applicability of Section 50 in a case where there

is a personal search also.  

20. This was the case where 7 bags of poppy husk each

weighing  34  kg.  were  found  from  the  vehicle.  A

personal search of the accused was undertaken after

their arrest which did not lead to any recovery of

contraband. The High Court found violation of Section

50  as  the  personal  search  of  the  accused  was  not

conducted before the Magistrate/Gazetted Officer and

set  aside  the  conviction  of  the  respondent.  This

Court, in Baljinder Singh (supra), went on to consider

the law laid down by the Constitution Bench in Baldev

Singh (supra) and, inter alia, held as follows:

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

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article recovered from personal search in violation  of  the  requirements  under Section 50 of the Act, but if there be other  evidence  on  record,  such  material can certainly be looked into.

17. In the instant case, the personal search of the accused did not result in recovery of any contraband. Even if there was any such recovery, the same could not be relied upon for want of compliance of the requirements of Section 50 of the Act. But the search of the vehicle and recovery of  contraband  pursuant  thereto  having stood  proved,  merely  because  there  was non-compliance of Section 50 of the Act as far as “personal search” was concerned, no benefit  can  be  extended  so  as  to invalidate the effect of recovery from the search of the vehicle. Any such idea would be directly in the teeth of conclusion (3) as aforesaid.

 18. The  decision  of  this  Court in Dilip  case [Dilip v. State  of  M.P., (2007) 1 SCC 450 : (2007) 1 SCC (Cri) 377] ,  however,  has  not  adverted  to  the distinction as discussed hereinabove and proceeded  to  confer  advantage  upon  the accused even in respect of recovery from the  vehicle,  on  the  ground  that  the requirements  of  Section  50  relating  to personal search were not complied with. In our view, the decision of this Court in the  said  judgment  in Dilip case [Dilip v. State of M.P., (2007) 1 SCC 450  :  (2007)  1  SCC  (Cri)  377]  is  not

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correct and is opposed to the law laid down by this 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, which directly dealt with this issue, viz., the

correctness  of  the  view  in  Dilip (supra)  reliance

placed by the appellant on paragraph 16 may not be

available.  As already noticed, we are not oblivious

of the observation which has been made in the other

three Judge Bench judgment of this Court in SK. Raju

(supra),  which  it  appears,  was  not  brought  to  the

notice to the Bench which decided the case later in

Baljinder                   Singh (supra).  We notice

however that the later decision draws inspiration from

the  Constitution  Bench  decision  in  Baldev  Singh

(supra).  We also notice that this is not a case where

anything was recovered on the alleged personal search.

The recovery was effected from the bag for which it is

settled law that compliance with Section 50 of the Act

is not required.

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22. The  complaint,  of  non-production  of  the  seized

material,  is  based  on  case  law  of  this  Court

originating  with  the  judgment  of  this  Court  in

Jitendra (supra).  It is necessary to survey the case

law  beginning  with  Jitendra (supra).   In  the  said

case, it is necessary to notice certain facts.  There

were panch witnesses for the recovery examined by the

prosecution.  They turned hostile.  Apart from the

prosecution  witnesses  PW7,  PW8  and  PW6,  there  was

found no independent witness regarding recovery.  It

is worthwhile to set out paragraph 6.  It reads as

under:   

 “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.”

(Emphasis supplied)

 23. We notice that this decision came to be followed

in  the  judgment  reported  in  Ashok  alias  Dangra

Jaiswal (supra).  Therein, the Court noted, apart

from seizure witness turning hostile, which was found

to  be  not  an  uncommon  phenomenon,  certain  other

features, as are narrated in paragraphs 10 and 11,

which read as under:

 “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 draft, Ext. P-31. The samples  sent  for  forensic  examination

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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.”

24. It is thereafter the Court noted that last but

not the least the narcotic powder was never produced

in the trial court as a material object and again

there was no explanation for its non-production.  It

was  found  that  there  was  no  evidence  to  connect

forensic report with the substance that was seized

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from the possession of the appellant or the other

accused  (see  paragraph  12).  It  was  in  these

circumstances  the  Court  drew  support  from  the

judgment  of  this  Court  in  Jitendra (supra).   The

appellant has not been able to demonstrate in the

facts of this case any facts which could be likened

to the facts stated in paragraphs 10 and 11. At least

nothing  was  urged  by  the  learned  Counsel  for  the

appellant on these lines.

25. Next  judgment  to  be  noticed  is  Vijay Jain v.

State of Madhya Pradesh  8. The first feature we notice

is that the contention about the contraband not being

produced  was  raised  before  the  trial  court  (see

paragraph 5).  It was a case where a suitcase was

produced  as  containing  the  alleged  contraband.  In

regard  to  the  suitcase,  the  evidence  of  PW11  was

elaborately considered.  It was found that the only

evidence before the Court was that in the suitcase

there was only a big pack wrapped in cloth and cloth

was torn and there was blue colour polythene in which

there were clothes.  The evidence of PW11 did not

8 (2013) 14 SCC 527

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reveal any brown sugar being found in the suitcase.

No doubt, the Court referred to two samples being

prepared. Then the Court noted that PW3 has stated

before the court that those samples were not prepared

in his presence. PW2 had stated that the witnesses

were not taken to the site where the materials were

seized. In Gorakh Nath      Prasad (supra), the Court

noted that neither the seized Ganja nor the sample

drawn  at  the  time  of  seizure  was  produced.   The

investigating officer-PW7 deposed there were no MR

No. on the sealed material. He was also not sure

whether  the  seized  material  had  been  kept  at  the

Malkhana and also that it had not been produced in

the Court.  The independent witness with regard to

the search and seizure, PW2 and PW3 turned hostile.

In these circumstances, it appears the court went on

to hold that non-production of the seized material

was therefore fatal to the prosecution case.  The

Court thereafter referred to the judgment of  Ashok

(supra)  following  Jitendra (supra).   Lastly,  we

notice the judgment of this Court in Mohinder Singh

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v. State of Punjab  9.  It was rendered by a Bench of

three learned Judges.  It was a case where the Trial

Court  had  acquitted  the  appellant  noticing,  inter

alia, that no order of the Magistrate was proved to

show that the case property was produced before the

Court.   The  High  Court  went  on  to  reverse  the

acquittal  and  convicted  the  appellant.   It  is

worthwhile to notice what this Court had said in the

facts of this case:   

 “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 1-5- 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 1-5-1998 itself. Baldev Singh (PW 5) the then Malkhana incharge 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

9 (2018) 18 SCC 540

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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.

 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.”

 26. Finally,  it  is  necessary  also  to  refer  to

paragraph 12 regarding the observation made therein.

It would assume relevance, which reads as follows:

“12. For  proving  the  offence  under the  NDPS  Act,  it  is  necessary  for  the prosecution to establish the quantity of

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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.”

27. For determining the exact provision applicable

under the law, viz., whether the offence relates to

commercial quantity or the other categories, it may

be necessary.  

28. In the facts of this case we, however, notice

certain  features.  Before  the  Trial  Court,  the

contention as such that not seen raised about the

non-production  of  the  contraband  articles.  We  may

also however refer to the judgment of this Court in

Sahi Ram (supra).  This was a case where 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 found 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  referred  to,  acquitted  the  respondent.   The

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Court  also  noted  paragraph  9  of  the  judgment  in

Jitendra (supra) where the court observed, taking the

cumulative effect of all circumstances, it was not

sufficient to bring home the charge.  The Court also

referred to the judgment of this Court in  Mohinder

Singh (supra).  

29. The Court also went to hold in Sahi Ram (supra)

that if seizure is otherwise proved on record and it

is  not  even  doubted  or  disputed,  it  need  not  be

placed before the Court.  The Court further held that

if the seizure is otherwise proved what is required

to be proved is the fact that samples taken out of a

contraband  are  kept  intact.  This  Court  held  as

follows:  

“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 the  said  submission  singularly  weighed with  this  Court  to  extend  benefit  of acquittal only on that ground. As is clear from  the  decision  of  this  Court in Jitendra [Jitendra v. State  of  M.P., (2004) 10 SCC 562: 2004 SCC (Cri) 2028],

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apart from the aforesaid submission other facets of the matter also weighed with the Court which is evident from 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 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  Jain [Vijay  Jain v. State  of M.P., (2013) 14 SCC 527 : (2014) 4 SCC (Cri) 276] , 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 Pandey [Vijay  Pandey v. State  of  U.P., (2019) 18 SCC 215 : 2019 SCC Online SC 942] , 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.

16. 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.

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xxx xxx xxx xxx

18. 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  the 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 kg 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.”

30. In  the  facts  of  this  case,  no  doubt  the

contraband article weighed 6 kg 300 gms.  A perusal

of the judgment of the Trial Court does not appear to

suggest  the  appellant  had  taken  the  contention

regarding non-production of the contraband before the

trial Court.  This contention as such is not seen as

taken before the High Court.  This is a case where

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the  sample  was  produced.  There  is  no  argument

relating to the tampering with the seal. We further

notice that in the deposition of the investigating

officer (PW7), he has stated as follows:

“The  case  property  is  Exhibit  P1,

sample  is  Exhibit  P2,  sample  seal  is

Exhibit P3 and the bag in which the case

property was recovered from the possession

of the accused present in the Court is

Exhibit P4.”

31. In the facts of this case, we have no hesitation

to reject the contention of the appellant.  

32. Next aspect, which we consider is, whether the

conviction  of  the  appellant  made  by  two  courts

requires interference on the ground that independent

witnesses were not associated with the investigation,

seizure and recovery. We have noticed the evidence

which is referred to by the appellant to criticize

the impugned judgment on this score. Two courts have

reposed  confidence  in  the  deposition  of  the

prosecution  witnesses.   The  Investigation  Officer-

PW7, when examined, has stated as follows:  

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“…At the time of apprehension of

accused  none  from  the  public  was

there.  There were shops but there was

no  residential  house.  Residential

colony is at some distance. No woman

from  the  locality  was  called.  Some

respectables were tried to be called.

I  do  not  remember  the  names  of  the

said persons.  Prem Singh son of Raja

Ram  resident of  Kahri, Sunil  son of

Ram Mehar resident of Panipat, Gushan

Kumar son of Gainda Ram resident of 8

Marla Colony, Panipat were asked to do

so.  It was about 2 P.M.  DSP had also

arrived.  The  aforesaid  persons

remained  with  us  for  5/10  minutes.

They  had  showed  their  inability  to

such a nature that I did not think it

proper  to  take  legal  action  against

them.  No shop keeper was called…”

33. In the light of this we do not think that a case

has been made for overturning the verdict of guilt

returned against the appellant.

34. In  the  circumstances,  as  noted  above,  though

there appears to be doubt created about whether the

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DSP was present,  upon being called by PW7 having

regard to the testimony of the DSP in the other case,

in view of the fact that the contraband articles were

in fact recovered upon search of the bag, and bearing

in mind the view taken by this Court in  Baljinder

Singh (supra), we do not find merit in the argument

of the appellant.  

35. Lastly,  the  learned  Counsel  for  the  appellant

made a fervent plea in this case that should his

contentions not be found acceptable, the Court may

direct  that  appellant  may  not  suffer  further

incarceration  in  the  State  of  Haryana  but  may

consider her being housed in a jail in the State of

Madhya Pradesh where she would have access to her

family members. This is a matter which we leave upon

to the appellant to seek appropriate relief. Subject

to the same, the appeal stands dismissed. Since the

appellant  is  on  bail,  her  bail  bond  shall  stand

cancelled.

.......................J.                        (ASHOK BHUSHAN)    

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...................... .J.

                        (K.M. JOSEPH)

NEW DELHI, MARCH 02, 2020.

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