2003 (9) TMI 709 - SC - Customs

Convictions and sentence - Held that - 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 prossession 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 panchanama 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 panchanama is nothing but a document written by the concerned police officer. The suggestion made by the defence in cross-examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with 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 pancha witnesses having turned hostile the non-examination of the Investigating Officer and nonproduction of the seized drugs the conviction under the NDPS Act can still be sustained is far fatched. Appeal allowed and set aside the judgment of the High Court and the trial court and quash the convictions of the appellants. The appellant-Jitendra is directed to release from custody forthwith if not required in any other case.

Summary

Issues:
Conviction under Narcotic Drugs and Psychotropic Substances Act, 1985 based on lack of crucial evidence and procedural irregularities.

Analysis:
The judgment revolves around two appeals challenging a common judgment of the Madhya Pradesh High Court convicting the appellants under the Narcotic Drugs and Psychotropic Substances Act, 1985. The prosecution's case was based on the recovery of charas and ganja from the accused individuals. However, crucial material objects, such as the seized drugs, were not produced during the trial, raising doubts about the connection between the recovered samples and the accused. The defense highlighted that the samples were drawn without the requisite order of the Magistrate as mandated by Section 52A of the NDPS Act. The evidence relied heavily on police officers and panch witnesses, with the latter turning hostile, undermining the prosecution's case.

The High Court upheld the convictions, emphasizing that the sealed samples sent for examination were found to be charas and ganja. However, the Supreme Court found this reasoning unsustainable, emphasizing the necessity of producing seized materials as best evidence. The failure to produce the seized drugs, coupled with the hostile panch witnesses and lack of examination of the Investigating Officer, weakened the prosecution's case. The reliance on documents not produced during the trial, such as a letter and discrepancies in the final report, further raised doubts about the prosecution's diligence and credibility.

In light of these discrepancies and procedural irregularities, the Supreme Court concluded that the prosecution failed to prove the charges beyond a reasonable doubt. The appellants were deemed entitled to the benefit of the doubt, leading to the quashing of their convictions. The judgment highlighted the importance of stringent evidence requirements in cases involving severe penalties under the NDPS Act, emphasizing the need for a robust prosecution case to secure convictions.