Criminal Appeal No.1883 of 2014

7th September, 2017.

Petitioner Counsel: Mr. ASHOK K. SRIVASTAVA, for Mr. B.V. BALRAM DAS
Respondent Counsel: Mr. DAYA KRISHAN SHARMA

Cases Cited:
Jitendra & Anr. Vs. State of M.P., (2004) 10 SCC 562 [Para 5]
Noor Aga Vs. State of Punjab & Anr., 2008 ALL SCR 2161=(2008) 16 SCC 417 [Para 5,7]
Ashok @ Dangra Jaiswal Vs. State of M.P., 2011 ALL SCR 895=(2011) 5 SCC 123 [Para 8]
Vijay Jain Vs. State of M.P., (2013) 14 SCC 527 [Para 9]

JUDGMENT

JUDGMENT :- Heard learned counsel for the appellant-Union of India.

2. No one is present on behalf of the respondent-accused.

3. This appeal by special leave is directed against the judgment and order dt.08.12.2009, passed by the High Court of Madhya Pradesh, bench at Indore, in Criminal Appeal No.1087 of 2008, whereby the High Court allowed the appeal of the respondent herein and acquitted him of the charges under Sections 8 and 15(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act"). Aggrieved by the acquittal of the respondent, Union of India is in appeal before this Court.

4. The prosecution story in brief is that on 26.07.2003, one Mukesh Khatri, who was serving as the Inspector in the office of Deputy Narcotics Commissioner, Neemach received an information at 6:00 AM that a truck bearing registration No. RJ-19-1G-1289, being driven by the respondent is carrying illegal poppy straw having weight of 6-7 quintals, travelling from Singoli Checkpost, Neemach to Chittorgarh. On receiving the information from the informant, a panchnama was written and submitted to Mr. Wargis, Superintendent (preventive), Central Narcotics Bureau. On the basis of the said panchnama Mr. Wargis directed Shri S. Banerjee, Sub-Inspector to constitute a raiding party and Panchas were also called. Around 6:45 AM when the truck was seen coming towards Manasa it was intercepted by the Sub-Inspector and two persons namely Ratnaram and Pokrram were found with Sixteen gunny bags of poppy straw weighing 600.4 Kilograms in the truck. After sampling the contraband material it was taken into possession and on completing formalities, the contraband was got sealed and deposited in the malkhana. On presentation of a report by Mukesh Khatri, Inspector, under Section 52A of the Act, the magistrate conducted the proceedings. From the perusal of the order sheets it is clear that there was no order of destruction of the contraband rather Section 52A proceedings were closed. Thereafter learned trial court judge framed charges which the respondent denied and claimed trial. The trial court found the respondent guilty under Sections 8 and 15 (c) of the Act and sentenced him to suffer rigorous imprisonment for thirteen years and to pay a fine of Rs. 1,50,000/-, in default to further suffer rigorous imprisonment for three years. Aggrieved by his conviction and sentence, the respondent went in appeal before the High Court.

5. The High court relying upon the judgments passed by this court in Jitendra & Anr. V. State of M.P. (2004) 10 SCC 562 and Noor Aga Vs. State of Punjab & Anr. (2008) 16 SCC 417 : [2008 ALL SCR 2161] wherein this court dealt with the core issue of the duty of the prosecution to produce the seized contraband material before the special Judge, acquitted the respondent from the charges and set aside the order of conviction passed by the trial court. Aggrieved thereby, the Union of India is in appeal before us.

6. It is to be noted that in the present case, the contraband article was produced before the Executive Magistrate, but after writing the order sheets, the Magistrate closed the proceedings under 52 A of the Act. The Inspector serving in the office of Narcotics Commissioner received the pre-trial samples of the contraband articles but those articles were not produced before the special Judge which was mandatory on the part of the prosecution as it would constitute the primary evidence.

7. In Noor Aga [2008 ALL SCR 2161] (Supra), this Court was of the view that non-production of primary evidence-the contraband material, by the prosecution before the trial court has resulted in drawing negative inference against the prosecution and this dents the credibility of the case of prosecution. The best evidence therefore would have been the seized contraband material before the court which ought to have been produced during the trial and also the prosecution has not tendered any explanation with respect to the failure to produce the evidence. The oral evidence would not discharge the heavy burden on the prosecution particularly where the offence is punishable with stringent sentence as under the NDPS Act.

8. In Ashok @ Dangra Jaiswal v. State of M.P., (2011) 5 SCC 123 : [2011 ALL SCR 895], it was again observed by this Court that-

"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 non-production. 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.

13. It may be noted here that in Jitendra v. State of M.P. [(2004) 10 SCC 562 : 2004 SCC (Cri) 2028], on similar facts this Court held that the material placed on record by the prosecution did not bring home the charge against the accused beyond reasonable doubt and it would be unsafe to maintain their conviction on that basis. In Jitendra [(2004) 10 SCC 562 : 2004 SCC (Cri) 2028], the Court observed and held as under: (SCC pp. 564-65, paras 5-6)

"5. The evidence to prove that charas and ganja were recovered from the possession of the accused consisted of the evidence of the police officers and the panch witnesses. The panch witnesses turned hostile. Thus, we find that apart from the testimony of Rajendra Pathak (PW 7), Angad Singh (PW 8) and Sub-Inspector D.J. Rai (PW 6), there is no independent witness as to the recovery of the drugs from the possession of the accused. The charas and ganja alleged to have been seized from the possession of the accused were not even produced before the trial court, so as to connect them with the samples sent to the forensic science laboratory. There is no material produced in the trial, apart from the interested testimony of the police officers, to show that the charas and ganja were seized from the possession of the accused or that the samples sent to the forensic science laboratory were taken from the drugs seized from the possession of the accused. Although the High Court noticed the fact that the charas and ganja alleged to have been seized from the custody of the accused had neither been produced in the court, nor marked as articles, which ought to have been done, the High Court brushed aside the contention by observing that it would not vitiate the conviction as it had been proved that the samples were sent to the chemical examiner in a properly sealed condition and those were found to be charas and ganja. The High Court observed, 'non-production of these commodities before the court is not fatal to the prosecution. The defence also did not insist during the trial that these commodities should be produced'. The High Court relied on Section 465 CrPC to hold that non-production of the material object was a mere procedural irregularity and did not cause prejudice to the accused.

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. 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)

9. In Vijay Jain v. State of M.P., (2013) 14 SCC 527, this Court has observed that-

"In para 96 of the judgment in Noor Aga case [(2008) 16 SCC 417 : (2010) 3 SCC (Cri) 748] this Court has held that the prosecution must in any case produce the samples even where the bulk quantity is said to have been destroyed. The observations of this Court in the aforesaid paragraph of the judgment do not say anything about the consequence of non-production of the contraband goods before the court in a prosecution under the NDPS Act.

10. On the other hand, on a reading of this Court's judgment in Jitendra case [Jitendra v. State of M.P., (2004) 10 SCC 562 : 2004 SCC (Cri) 2028], 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 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 Ashok [Ashok v . State of M.P., (2011) 5 SCC 123 : (2011) 2 SCC (Cri) 547] 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 non-production 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.

...

12. We are thus of the view that as the prosecution has not produced the brown sugar before the Court and has also not offered any explanation for non-production of the brown sugar alleged to have been seized from the appellants and as the evidence of the witnesses (PW 2 and PW 3) to the seizure of the materials does not establish the seizure of the brown sugar from the possession of the appellants, the judgment of the trial court convicting the appellants and the judgment of the High Court maintaining the conviction are not sustainable. (emphasis supplied)

10. Considering the aforesaid judgments and the admission of the prosecution that they have not produced the contraband material before the special judge, the High Court has rightly acquitted the accused-respondent herein. We, therefore, find no reason to interfere with the impugned judgment passed by the High Court. The appeal stands dismissed.

Appeal dismissed.