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TMI Blog2020 (3) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment 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 point out that the appellant has not raised this complaint before the Trial court or the High Court. There is no disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. Agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 (2013) 14 SCC 527. 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore 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 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 categ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13) 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, nonproduction of the contraband material before the court has singularly been found to be sufficient to grant the benefit of acquittal. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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