2020 (3) TMI 139 - SC - Indian Laws

Smuggling - Contraband item - Opium - Non-production of independent witnesses - compliance with the requirements of Section 50 of NDPS Act or not. 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 - HELD THAT - 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 time at two different places. This clearly rendered prosecution case suspect and benefit of doubt should at any rate must go to the accused. Violation of Section 50 - HELD 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. Non-production of contraband articles - HELD THAT - 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 the sample was produced. There is no argument relating to the tampering with the seal - there is no hesitation to reject the contention of the appellant. 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? - HELD THAT - 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 - we do not think that a case has been made for overturning the verdict of guilt returned against the appellant. Though there appears to be doubt created about whether the 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, there are no merit in the argument of the appellant. 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. Appeal stands dismissed - Since the appellant is on bail, her bail bond shall stand cancelled.

Summary

Issues Involved:
1. Presence of Gazetted Officer during the search.
2. Non-production of contraband before the court.
3. Compliance with Section 50 of the NDPS Act.
4. Non-association of independent witnesses.

Issue-wise Detailed Analysis:

1. Presence of Gazetted Officer during the search:
The appellant contended that the DSP, a Gazetted Officer, was allegedly present at the spot during the search but his testimony indicated he was involved in another case at the same time. This discrepancy cast doubt on the prosecution's case. The DSP testified he reached the spot at 01:30 P.M. and remained until 03:00 P.M., while in another case, he claimed to be at a different location from 12:30 P.M. to 02:30 P.M. The court noted this discrepancy but ultimately upheld the conviction, emphasizing the recovery of contraband from the appellant’s bag.

2. Non-production of contraband before the court:
The appellant argued that the failure to produce the seized contraband in court vitiated the conviction. The court reviewed several precedents, including Jitendra v. State of M.P. and Ashok alias Dangra Jaiswal v. State of M.P., which emphasized the importance of producing seized material. However, in the present case, the court found that the appellant did not raise this issue during the trial or appeal. The court also noted that the sample of the contraband was produced, and there was no evidence of tampering with the seal. The court concluded that non-production of the entire contraband did not invalidate the conviction, especially given the large quantity involved.

3. Compliance with Section 50 of the NDPS Act:
The appellant contended that Section 50, which mandates informing the accused of their right to be searched before a Magistrate or Gazetted Officer, was violated. The court referred to the judgment in State of Punjab v. Baljinder Singh, which clarified that Section 50 applies to personal searches, not to searches of bags or vehicles. Since the contraband was recovered from a bag, the court held that Section 50 was not applicable. Additionally, no contraband was recovered from the personal search of the appellant, further negating the applicability of Section 50.

4. Non-association of independent witnesses:
The appellant argued that no independent witnesses were associated with the search and seizure, despite their availability. The court examined the testimony of PW-6, who stated that public witnesses were reluctant to join the investigation. The court found that the prosecution had made efforts to involve independent witnesses but could not compel their participation. The court upheld the conviction, noting that the testimonies of the police officers were credible and consistent.

Conclusion:
The court dismissed the appeal, affirming the appellant's conviction under Section 18 of the NDPS Act. The court addressed each contention raised by the appellant, finding that the discrepancies and procedural issues did not undermine the prosecution's case. The court also left it open for the appellant to seek relief regarding incarceration location, allowing for potential transfer to a jail in Madhya Pradesh for family access.