2018 ALL SCR (Cri) 658
SUPREME COURT
S. A. BOBDE AND L. NAGESWARA RAO, JJ.
Satyajit Hazari Etc. Vs. The State of Assam
Criminal Appeal Nos.1290-1291 of 2005
15th February, 2018.
Petitioner Counsel: Mr. NIKHIL GOEL, Ms. NAVEN GOEL, Mr. ASHUTOSH GHADE, Mrs. SHEELA GOEL
Respondent Counsel: Mr. DEBOJIT BORKAKATI, Mr. M. BALASHIVUDU
Narcotic Drugs and Psychotropic Substances Act (1985), S.8(c) - Possession of contraband - Conviction - Challenge - Contraband allegedly possessed by accused, itself not produced before court as material object - Fatal flaw in prosecution case - Order of conviction set aside. (Paras 2, 5)
Cases Cited:
Gorakh Nath Prasad Vs. State of Bihar, 2018 ALL SCR (Cri) 237=Cri. Appeal No. 2104/2017, Dt.05.12.2017 [Para 2]
JUDGMENT
JUDGMENT :- We have heard learned counsel for both sides.
2. We find that the trial and the conviction proceeded on a fatal flaw that the contraband, for the possession of which the appellants had been prosecuted and convicted has itself not been produced before the Court as material object. Consequently, neither the attention of the accused was adverted to the said contraband nor the Court has had any opportunity to see the contraband which is allegedly found in the appellants' possession. Such flaw on the prosecution side is discussed in the case of Gorakh Nath Prasad v. State of Bihar (Criminal Appeal No. 2104 of 2017) : [2018 ALL SCR (Cri) 237] decided on 05.12.2017.
3. Learned counsel for the respondent submitted that there is a mention to this effect in the Malkhana Register. Shri Nikhil Goel, learned counsel for the appellants pointed out that even this Register was not produced before the Court. In any case, we find that an entry in the Malkhana Register cannot be a substitute of producing the contraband before the Court as a material object. The judgment and order passed by the High Court is, therefore, set aside.
4. Since appellant-Stayajit Hazari(Criminal Appeal No. 1290/2005) is on bail, his bail bonds shall stand discharged.
5. The appellant Rabindra Singha (Criminal Appeal No. 1291/2005), who was released earlier vide order dated 04.02.2016 and was taken into custody pursuant to order dated 21.09.2017, shall be released forthwith, if not required in any other case.