REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(s).1143 OF 2019 (arising out of SLP(Crl.)No.1273 of 2019)

VIJAY PANDEY ...APPELLANT(S)

VERSUS

STATE OF UTTAR PRADESH     ...RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

The appellant assails his conviction and sentence under

Sections 8 and 15 of the of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (hereinafter referred as “the NDPS Act”)

for 15 years along with fine of Rs.1,50,000/­ under Section 31

of the NDPS Act.

2. The  appellant is stated to  have  been  carrying  a  plastic

flour packet in his right hand leading to recovery of 10 kgs. of

opium.  No independent witness from the locality was included

in the investigation  and all the  witnesses  are  police  officials

only.

1

3. Learned counsel for the appellant alleging false implication

contends that  he was apprehended as he stepped out of  his

house. There is no explanation for the non­availability of any

independent witness in a residential locality. There is non­

compliance with Section 50 of the NDPS Act. The prosecution

failed to prove that the sample produced in court was the same

as seized from the appellant.  

4.  Learned counsel for the State submits that the appellant

has a previous history of two convictions under the NDPS Act

and he is a habitual offender.   Section 50 has been complied

with. The Trial Court has recorded its satisfaction that the

sample produced in court was the same seized from the

appellant.   In any event it has caused  no prejudice to the

appellant.   

5. We have considered the respective submissions.   The

seizure was at 06.40 AM at the door step of the appellant.  We

2

find it difficult to believe that in a rural residential locality, the

police were unable to  find a single  independent witness.  No

name of any person has been mentioned who may have declined

to be a witness.  The High Court, despite noticing the absence of

any recovery memo prepared at the time of search and seizure

under Section 50 of the NDPS Act, opined that the deposition of

the police witness to that effect was sufficient compliance.

Though the Laboratory Report was obtained, but the identity of

the sample stated to have been seized from the appellant was

not conclusively established by the prosecution.  

6. The accused had raised an objection regarding the sample

produced in court not having been established as seized from

him.  The Trial Court opined that “the malkhanas in the State of

Uttar Pradesh  were in  miserable condition and strange and

objectionable thing come to the eyes”.   The plastic packet

produced was of very low quality and the quality of ink used in

writing the name of the accused on the same was not

decipherable  and may have got  erased with passage of time.

3

Nonetheless, since the allegations against the appellant  had

been proved by the witnesses, the failure to conclusively identify

the sample produced as having been seized from the appellant

was  inconsequential.  Unfortunately, the  High Court  did  not

deal with this aspect of the matter at all.  The fact of an earlier

conviction  may  be relevant for the purpose of sentence but

cannot be a ground for conviction per se.  

7. In Mohan Lal vs. State of Punjab, AIR 2018 SC 3853, it

was observed:

“10. Unlike the general principle of criminal jurisprudence that an accused is presumed innocent unless proved guilty, the NDPS Act carries a reverse burden of proof under Sections 35 and 54.  But that cannot be understood to mean that the moment an allegation is made and the F.I.R. recites compliance with  statutory  procedures leading to recovery, the burden of proof from the very inception of the prosecution shifts to the accused, without the prosecution  having to establish  or  prove  anything more.  The presumption is rebuttable.  Section 35(2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability.  The stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of ten years, absence of any provision for remission,  do  not  dispense  with the requirement of the prosecution to establish a prima facie case beyond reasonable doubt after

4

investigation, only after which the burden of proof shall shift to the accused.   The case of the prosecution cannot be allowed to rest on a preponderance of probabilities.”   

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 sample tested was narcotics cannot be

conclusive proof by itself.   The sample seized and that tested

have to be co­related. The observations in Vijay Jain vs. State

of Madhya Pradesh, (2013) 14 SCC 527, as follows are

considered relevant :

“10. On the other hand, on a reading of this Court's judgment in Jitendra's case, 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

5

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 the case of  Ashok  (supra), 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 non­production 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.”

9. In  Ashok alias Dangra Jaiswal vs. State of Madhya

Pradesh, (2011) 5 SCC 123, it was observed:

“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 non­production. 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.”

10. We are, therefore, unable to uphold the conviction of the

appellant.  The conviction by the Trial Court and upheld by the

High Court  are  unsustainable  and are  accordingly  set  aside.

The appellant is acquitted. He is directed to be released

forthwith unless wanted in any other case.   

6

11. The appeal is allowed.

.……………………….J.  (Ashok Bhushan)

………………………..J.    (Navin Sinha)   

New Delhi, July 30, 2019.

7