no requirement to produce entire contraband material before the Court. to prove seizer=
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 this 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 kgs that it may not be possible and feasible to produce the entire bulk before the Court. If the seizure is otherwise proved, what is required to be proved is the fact that the samples taken from and out of the contraband material were kept intact, that when the samples were submitted for forensic examination the seals were intact, that the report of the forensic experts shows the potency, nature and quality of the contraband material and that based on such material, the essential ingredients constituting an offence are made out.
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1497 OF 2019
(Arising out of SLP(Crl.) No.8428 of 2016)
STATE OF RAJASTHAN …APPELLANT
VERSUS
SAHI RAM …RESPONDENT
J U D G M E N T
Uday Umesh Lalit, J.
1. Leave granted.
2. This appeal challenges the final order dated 07.04.2016 passed by
the High Court1
in S.B. Criminal Appeal No.774 of 2015.
3. On receiving source information on 20.06.2006 that in a white
coloured Tavera vehicle bearing registration No.RJ27-TC-0323 three
persons were coming from Madhya Pradesh along with contraband
material namely poppy straw and were proceeding towards Jodhpur, the
information was reduced to writing and a copy was immediately forwarded
to the superior officers in terms of requirements of Section 42 of the
1 The High Court of Judicature for Rajasthan at Jodhpur
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
2
Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter
referred to as “the NDPS Act”).
4. A team was thereafter constituted which reached the Railway
crossing near petrol pump Nimbahera. Two private persons named Kishan
Lal and Chaman Lal were asked to associate as Panchas. At 9.40 AM, the
vehicle was seen coming from Neemuch and was stopped. The vehicle
was being driven by the respondent while the other two occupants were
identified as Sohan and Kanhaiya Lal. After following mandatory
requirements under the provisions of the NDPS Act, the vehicle was
searched, during which seven bags of poppy straw, the gross weight being
223 kgs were found behind the driver’s seat. From every bag two samples
of 500 grams were taken and two such samples were sealed. Remaining
quantity of 2500 grams was put in a separate pouch. The bags weighing
about 223 kgs were also sealed. Punchnama to that effect was recorded
which bore the signatures of the respondent and other persons.
5. After completing investigation, charge-sheet was filed against the
respondent and against said Sohan and Kanhaiya Lal for the offence
punishable under Section 8 read with 15 of the NDPS Act while the
investigation was kept pending against one Shyam Sunder, his wife Vimla,
the owners of the vehicle and one Pappu Raja. By Order dated 25.05.2015,
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
3
said Sohan and Kanhaiya Lal were marked as absconding accused in the
trial.
6. The prosecution examined eighteen witnesses in support of its
case. PW15, Surender Singh, from Police Station Nimbahera had
entered the information in Rojnamcha and had intimated the superior
officials. As regards the recovery of the contraband material he stated:-
“…… Behind the driver’s seat there were white
plastic bags which were tied with strings, which were
opened with the help of the police team and the
witnesses, and smelled, and then everybody told it to
be poppy husk. They were asked if they had any valid
license for this poppy husk and they had told that they
do not have any license. Their above act of all the
three people was found to be punishable offence
under section 8/15 NDPS Act due to which the bags
were taken out of the vehicle, all the bags were
weighed, then, in the 7 bags 223 kg poppy husk was
found. 500 gm poppy husk was taken out from every
bag and was weighed together and it came out to be
3500 gm. Out of this two samples of 500 gm each
were put in plastic packets and were then put in white
cloth bags and seal stamped. The sample was marked
A and the control sample was marked B. the
remaining 2500 gm sample was seal stamped and
given mark C.”
“…..All the three accused Sahi Ram, Sohan,
Kanhaiya Lal were given notices under section 52 and
were arrested. I recognize all the three accused, who
are today not present in the court. The notice given to
witness Kishan is Exibit P-1, which bears my
signatures from E to F, and the signatures of Kishan
are from C to D, the notice given to Chaman is Exibit
P-17, which bears my signatures from E to F, and the
signatures of Chaman are from C to D. the notice
given to accused Sahi Ram under section 50 is Exibit
P-2, the notice given to accused Sohan under section
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
4
50 is Exibit P-3, the notice given to accused Kanhaiya
Lal under section 50 is Exibit P-4, which bears my
signatures from E to F, and the signatures of accused
are from G to H. the memo of seizure of poppy husk
is Exibit P-5, which bears my signatures from E to F,
and the signatures of accused are from G to H, I to J,
K to L.”
7. After considering the relevant evidence on record, the Special
Judge, NDPS Case No.2, Chittorgarh vide judgment dated 01.08.2015
found that the case was established against the respondent herein and he
was convicted for offence punishable under Section 8 read with 15 of the
NDPS Act. By a separate order of even date, the respondent was sentenced
to suffer rigorous imprisonment for fifteen years and to pay fine of
Rs.1,50,000/-; in default whereof he was directed to suffer further rigorous
imprisonment for one year. It was observed by the trial court:-
“….. In the present case, charge of keeping total
223 kilograms of illegal Dodachura in his conscious
possession and transporting it in Tavera car bearing
No. RJ27-TC-0323 has been proved against the
accused Sahi Ram in the present case, in regard to
which he had no valid license to keep the same in his
possession and quantity of seized illegal Dodachura is
more than commercial quantity.”
8. The respondent being aggrieved filed S.B. Criminal Appeal No.774
of 2015 before the High Court. Only one ground was urged in support of
the appeal that the Muddamal i.e., contraband material in question was not
produced before the Court and that the evidence on record did not support
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
5
the case about the seizure and recovery of 223 kgs. of contraband. The
High Court accepted the submission and concluded that only two samplespackets and one bag of poppy straw weighing 2.5 kg were produced and
exhibited while the entire contraband material was not produced and
exhibited. Relying on the decisions of this Court in Noor Aga v. State of
Punjab & Another2
, Jitendra & Another v. State of Madhya Pradesh3
,
Ashok alias Dangra Jaiswal v. State of Madhya Pradesh4
and Vijay Jain
v. State of Madhya Pradesh5
it was observed that failure to exhibit
Muddamal and contraband material was fatal to the case of prosecution.
The High Court observed:-
“….Non-exhibition of the Muddamal in the court
leads to the irrefutable conclusion that the prosecution
failed to lead primary evidence of the seizure and
thus, the entire evidence of the prosecution regarding
the alleged recovery has to be discarded.
Since in the case at hand, the prosecution failed
to exhibit the Muddamal in the court, the entire
evidence of the prosecution regarding alleged seizure
has to be discarded.”
With the aforesaid view, the High Court allowed the appeal, set
aside the Judgment and Order dated 01.08.2015 passed by the Special
Judge and acquitted the respondent of the charge levelled against him.
2 (2008) 16 SCC 417
3 (2004) 10 SCC 562
4 (2011) 5 SCC 123
5 (2013) 14 SCC 527
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
6
9. We heard Dr. Manish Singhvi, learned Senior Advocate for the
State and Mr. Saurabh Ajay Gupta, learned Advocate for the respondent.
10. At the outset, it must be considered whether the cases relied upon
by the High Court state in unequivocal terms that in case of failure to
produce the contraband material before the Court, the case of the
prosecution is required to be discarded or not.
11. In Jitendra & Another v. State of Madhya Pradesh3
, it was
undoubtedly submitted on behalf of the accused that the material objects
were not at all produced at the trial. The submission in that behalf was
recorded in para No.4 as under:
“4. The learned counsel for the appellants strongly
urged that the High Court has completely missed the
crucial issue that was urged on behalf of the accused.
He pointed out that this was a strange case where the
material objects viz. one kilogram charas alleged to
have been seized from the custody of Jitendra, and
one kilogram ganja alleged to have been seized from
the possession of Jitendra’s mother, accused Sheela,
were not at all produced at the trial.”
It was further submitted that there was no material whatsoever to
prove that the samples that were dispatched to the FSL were actually
drawn from the seized material. The matter was considered by this Court
as under:
“6. In our view, the view taken by the High Court is
unsustainable. In the trial it was necessary for the
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
7
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 crossexamination 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.
7. The learned counsel for the appellants brought to
our notice two more facts. The High Court seems to
have relied on a copy of the letter dated 14-8-1999
written by the Superintendent of Police, Datia to the
Director, State Forensic Laboratory, Sagar and placed
reliance thereupon, although this was not a document
produced during the trial and proved according to law.
The High Court commented that the prosecution had
failed to exhibit the letter during the trial and that the
trial court was not vigilant in this respect. In the
absence of anyone affirming the correctness of the
contents of the letter, the High Court has placed
reliance on the contents of the letter merely on the
ground that the said document was mentioned at
Serial No. 9 in the charge-sheet, and presumably its
copy must have been supplied to the accused. This is
another lacuna, noticeable in the judgment of the High
Court.
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
8
8. The learned counsel for the appellant drew our
attention to the final report dated 3-10-1999 submitted
under Section 173 CrPC, from the original file. We
notice something peculiar here. In the final report, in
column 16, headed “Result of laboratory analysis”, it
is stated “report of FSL, Sagar is awaited”.
Interestingly, the report of the State Forensic
Laboratory, Sagar is dated 30-8-1999 (Ext. P-17)
certifying that the packets ‘A’, ‘B’ and ‘C’ sent to the
laboratory contained charas and ganja. It appears
strange to us that the final report submitted under
Section 173 CrPC on 3-10-1999, on which the chargesheet was based, was submitted by the police officer
concerned either without being aware of or without
reading the report of the Forensic Science Laboratory.
Or else, the Forensic Science Laboratory’s report is
ante-dated. This is another circumstance which
militates strongly against the prosecution.
9. Taking the cumulative effect of all the
circumstances, it appears to us that the material placed
on record by the prosecution does not bring home the
charge beyond reasonable doubt. We are of the view
that upon the material placed on record it would be
unsafe to convict the appellants. They are certainly
entitled to the benefit of doubt.” (emphasis added)
12. In Ashok alias Dangra Jaiswal v. State of Madhya Pradesh4
, it
was observed as under: -
“9. The seizure witnesses turning hostile may not be
very significant, as it is not an uncommon
phenomenon in criminal trials, particularly in cases
relating to NDPS but there are some other
circumstances which, when taken together, make it
very unsafe to uphold the appellant’s conviction.
10. The seizure of the alleged narcotic substance is
shown to have been made on 8-3-2005, at 11.45 in the
evening. The samples taken from the seized substance
were sent to the FSL on 10-3-2005, along with the
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
9
draft, Ext. P-31. The samples sent for forensic
examination were, however, not deposited at the FSL
on that date but those came back to the police station
on 12-3-2005 due to some mistake in the draft or with
some query in respect of the draft. The samples were
sent back to the FSL on 14-3-2005, after necessary
corrections in the draft and/or giving reply to the
query and on that date the samples were accepted at
the FSL. From the time of the seizure in the late
evening of 8-3-2005, till their deposit in the FSL on
14-3-2005, it is not clear where the samples were laid
or were handled by how many people and in what
ways.
11. The FSL report came on 21-3-2005, and on that
basis the police submitted charge-sheet against the
accused on 31-3-2005, but the alleged narcotic
substance that was seized from the accused, including
the appellant was deposited in the malkhana about
two months later on 28-5-2005. There is no
explanation where the seized substance was kept in
the meanwhile.
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.”
Relying on the decision of this Court in Jitendra3
, the benefit of
doubt was given and the accused was acquitted.
13. In Vijay Jain v. State of Madhya Pradesh5
, it was submitted on
behalf of the accused, as is evident from para 4 of the decision, that there
was non-production of the contraband goods. This Court dealt with the
matter as under:-
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
10
“9. Para 96 of the judgment of this Court in Noor Aga
case2 on which the learned counsel for the State very
strongly relies is quoted hereinbelow: (SCC p. 464)
“96. Last but not the least, physical evidence
relating to three samples taken from the bulk
amount of heroin was also not produced. Even if
it is accepted for the sake of argument that the
bulk quantity was destroyed, the samples were
essential to be produced and proved as primary
evidence for the purpose of establishing the fact
of recovery of heroin as envisaged under Section
52-A of the Act.”
Thus in para 96 of the judgment in Noor Aga case2
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. (Emphasis added)
10. On the other hand, on a reading of this Court’s
judgment in Jitendra case3, 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 Ashok4 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
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
11
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 nonproduction 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 added)
14. In a recent decision dated 30th July, 2019 of this Court in Vijay
Pandey v. State of Uttar Pradesh6
the benefit was extended on the ground
that there was no co-relation between the seized samples and one that was
tested. Reliance was placed on the observations of this Court in Vijay
Jain5 which inter alia stated that there was no evidence to connect the
forensic report that the substance that was seized from the possession of
the accused. The relevant observations are to be found in para 8 of the
decision:
“8. The failure of the prosecution in the present case
to relate the seized sample with that seized from the
appellant makes the case no different from failure to
produce the seized sample itself. In the circumstances
the mere production of a laboratory report that the
samples tested was narcotics cannot be conclusive
proof by itself. The sample seized and that tested
6 Criminal Appeal No.1143 of 2019 @ SLP(Crl) No.1273 of 2019 decided on
30.07.2019
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
12
have to be co-related. The observations in Vijay
Jain5
, as follows are considered relevant:
10. On the other hand, on a reading of this Court’s
judgment in Jitendra case3, 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 Ashok4 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.” (emphasis added)
15. It is true that in all the aforesaid cases submission was advanced on
behalf of the accused that failure to produce contraband material before the
Court ought to result in acquittal of the accused. However in none of the
aforesaid cases said submission singularly weighed with this Court to
extend benefit of acquittal only on that ground. As is clear from decision
of this Court in Jitendra3
, apart from the aforesaid submission other facets
of the matter also weighed with the Court which is evident from paras 7 to
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
13
9 of the decision. Similarly in Ashok4
, the fact that there was no
explanation where the seized substance was kept (para 11) and the further
fact that there was no evidence to connect the forensic report with the
substance that was seized, (para 12) were also relied upon while extending
benefit of doubt in favour of the accused. Similarly, in Vijay Jain5
, 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 Pandey6
, 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.
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.
16. Turning to the facts in the present matter, the evidence of PW15
Surender Singh shows that from and out of 7 bags of poppy husk, samples
weighing about 500 grams were taken out of each bag. Out of these 3500
grams thus taken out, two samples of 500 grams were independently sealed
while rest 2500 grams were also sealed in a separate pouch. These samples
were marked A, B and C respectively. The bags were also independently
sealed and taken in custody and Exbt-5 seizure memo which recorded all
these facts was also signed by the accused. We have gone through the
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
14
cross-examination of the witness. At no stage even a suggestion was put to
the witness that either the signatures of the accused were taken by fraud,
coercion or mis-representation or that the signatures were not of the
accused or that they did not understand the purport of the seizure memo. It
would therefore be difficult to even suggest that the seizure of contraband
weighing 223 kgs was not proved by the prosecution. In our view this fact
stood conclusively proven.
17. 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 this 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 kgs that it may not be
possible and feasible to produce the entire bulk before the Court. If the
seizure is otherwise proved, what is required to be proved is the fact that
the samples taken from and out of the contraband material were kept intact,
that when the samples were submitted for forensic examination the seals
were intact, that the report of the forensic experts shows the potency,
nature and quality of the contraband material and that based on such
material, the essential ingredients constituting an offence are made out.
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
15
18. In the aforesaid premises the conclusion drawn by the High Court
was completely unsustainable and the High Court erred in extending the
benefit of acquittal to the respondent. We, therefore, allow this appeal, set
aside the view taken by the High Court and restore the order of conviction
as recorded by the trial court against the respondent in its judgment and
order dated 01.08.2015. The minimum sentence of imprisonment for the
offence punishable under Section 8 read with 15 of the NDPS Act is 10
years.
Considering the facts on record, in our view the appropriate
sentence would be Rigorous Imprisonment for 10 years as substantive
sentence. We order accordingly, keeping the other parts of sentence
namely sentence of fine and sentence in default of payment of fine as
ordered by the trial court, intact and unchanged.
19. The appeal stands allowed in aforesaid terms.
20. We direct the respondent to surrender before the concerned Police
Station within seven days from today, failing which, the respondent shall
immediately be taken in custody by the concerned police station.
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
16
A copy of this order of this Court shall be sent to the concerned
CJM as well as the Police Station for intimation and compliance.
………………………..J.
[Uday Umesh Lalit]
………………………..J.
[Vineet Saran]
New Delhi;
September 27, 2019.
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 this 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 kgs that it may not be possible and feasible to produce the entire bulk before the Court. If the seizure is otherwise proved, what is required to be proved is the fact that the samples taken from and out of the contraband material were kept intact, that when the samples were submitted for forensic examination the seals were intact, that the report of the forensic experts shows the potency, nature and quality of the contraband material and that based on such material, the essential ingredients constituting an offence are made out.
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1497 OF 2019
(Arising out of SLP(Crl.) No.8428 of 2016)
STATE OF RAJASTHAN …APPELLANT
VERSUS
SAHI RAM …RESPONDENT
J U D G M E N T
Uday Umesh Lalit, J.
1. Leave granted.
2. This appeal challenges the final order dated 07.04.2016 passed by
the High Court1
in S.B. Criminal Appeal No.774 of 2015.
3. On receiving source information on 20.06.2006 that in a white
coloured Tavera vehicle bearing registration No.RJ27-TC-0323 three
persons were coming from Madhya Pradesh along with contraband
material namely poppy straw and were proceeding towards Jodhpur, the
information was reduced to writing and a copy was immediately forwarded
to the superior officers in terms of requirements of Section 42 of the
1 The High Court of Judicature for Rajasthan at Jodhpur
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
2
Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter
referred to as “the NDPS Act”).
4. A team was thereafter constituted which reached the Railway
crossing near petrol pump Nimbahera. Two private persons named Kishan
Lal and Chaman Lal were asked to associate as Panchas. At 9.40 AM, the
vehicle was seen coming from Neemuch and was stopped. The vehicle
was being driven by the respondent while the other two occupants were
identified as Sohan and Kanhaiya Lal. After following mandatory
requirements under the provisions of the NDPS Act, the vehicle was
searched, during which seven bags of poppy straw, the gross weight being
223 kgs were found behind the driver’s seat. From every bag two samples
of 500 grams were taken and two such samples were sealed. Remaining
quantity of 2500 grams was put in a separate pouch. The bags weighing
about 223 kgs were also sealed. Punchnama to that effect was recorded
which bore the signatures of the respondent and other persons.
5. After completing investigation, charge-sheet was filed against the
respondent and against said Sohan and Kanhaiya Lal for the offence
punishable under Section 8 read with 15 of the NDPS Act while the
investigation was kept pending against one Shyam Sunder, his wife Vimla,
the owners of the vehicle and one Pappu Raja. By Order dated 25.05.2015,
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
3
said Sohan and Kanhaiya Lal were marked as absconding accused in the
trial.
6. The prosecution examined eighteen witnesses in support of its
case. PW15, Surender Singh, from Police Station Nimbahera had
entered the information in Rojnamcha and had intimated the superior
officials. As regards the recovery of the contraband material he stated:-
“…… Behind the driver’s seat there were white
plastic bags which were tied with strings, which were
opened with the help of the police team and the
witnesses, and smelled, and then everybody told it to
be poppy husk. They were asked if they had any valid
license for this poppy husk and they had told that they
do not have any license. Their above act of all the
three people was found to be punishable offence
under section 8/15 NDPS Act due to which the bags
were taken out of the vehicle, all the bags were
weighed, then, in the 7 bags 223 kg poppy husk was
found. 500 gm poppy husk was taken out from every
bag and was weighed together and it came out to be
3500 gm. Out of this two samples of 500 gm each
were put in plastic packets and were then put in white
cloth bags and seal stamped. The sample was marked
A and the control sample was marked B. the
remaining 2500 gm sample was seal stamped and
given mark C.”
“…..All the three accused Sahi Ram, Sohan,
Kanhaiya Lal were given notices under section 52 and
were arrested. I recognize all the three accused, who
are today not present in the court. The notice given to
witness Kishan is Exibit P-1, which bears my
signatures from E to F, and the signatures of Kishan
are from C to D, the notice given to Chaman is Exibit
P-17, which bears my signatures from E to F, and the
signatures of Chaman are from C to D. the notice
given to accused Sahi Ram under section 50 is Exibit
P-2, the notice given to accused Sohan under section
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
4
50 is Exibit P-3, the notice given to accused Kanhaiya
Lal under section 50 is Exibit P-4, which bears my
signatures from E to F, and the signatures of accused
are from G to H. the memo of seizure of poppy husk
is Exibit P-5, which bears my signatures from E to F,
and the signatures of accused are from G to H, I to J,
K to L.”
7. After considering the relevant evidence on record, the Special
Judge, NDPS Case No.2, Chittorgarh vide judgment dated 01.08.2015
found that the case was established against the respondent herein and he
was convicted for offence punishable under Section 8 read with 15 of the
NDPS Act. By a separate order of even date, the respondent was sentenced
to suffer rigorous imprisonment for fifteen years and to pay fine of
Rs.1,50,000/-; in default whereof he was directed to suffer further rigorous
imprisonment for one year. It was observed by the trial court:-
“….. In the present case, charge of keeping total
223 kilograms of illegal Dodachura in his conscious
possession and transporting it in Tavera car bearing
No. RJ27-TC-0323 has been proved against the
accused Sahi Ram in the present case, in regard to
which he had no valid license to keep the same in his
possession and quantity of seized illegal Dodachura is
more than commercial quantity.”
8. The respondent being aggrieved filed S.B. Criminal Appeal No.774
of 2015 before the High Court. Only one ground was urged in support of
the appeal that the Muddamal i.e., contraband material in question was not
produced before the Court and that the evidence on record did not support
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
5
the case about the seizure and recovery of 223 kgs. of contraband. The
High Court accepted the submission and concluded that only two samplespackets and one bag of poppy straw weighing 2.5 kg were produced and
exhibited while the entire contraband material was not produced and
exhibited. Relying on the decisions of this Court in Noor Aga v. State of
Punjab & Another2
, Jitendra & Another v. State of Madhya Pradesh3
,
Ashok alias Dangra Jaiswal v. State of Madhya Pradesh4
and Vijay Jain
v. State of Madhya Pradesh5
it was observed that failure to exhibit
Muddamal and contraband material was fatal to the case of prosecution.
The High Court observed:-
“….Non-exhibition of the Muddamal in the court
leads to the irrefutable conclusion that the prosecution
failed to lead primary evidence of the seizure and
thus, the entire evidence of the prosecution regarding
the alleged recovery has to be discarded.
Since in the case at hand, the prosecution failed
to exhibit the Muddamal in the court, the entire
evidence of the prosecution regarding alleged seizure
has to be discarded.”
With the aforesaid view, the High Court allowed the appeal, set
aside the Judgment and Order dated 01.08.2015 passed by the Special
Judge and acquitted the respondent of the charge levelled against him.
2 (2008) 16 SCC 417
3 (2004) 10 SCC 562
4 (2011) 5 SCC 123
5 (2013) 14 SCC 527
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
6
9. We heard Dr. Manish Singhvi, learned Senior Advocate for the
State and Mr. Saurabh Ajay Gupta, learned Advocate for the respondent.
10. At the outset, it must be considered whether the cases relied upon
by the High Court state in unequivocal terms that in case of failure to
produce the contraband material before the Court, the case of the
prosecution is required to be discarded or not.
11. In Jitendra & Another v. State of Madhya Pradesh3
, it was
undoubtedly submitted on behalf of the accused that the material objects
were not at all produced at the trial. The submission in that behalf was
recorded in para No.4 as under:
“4. The learned counsel for the appellants strongly
urged that the High Court has completely missed the
crucial issue that was urged on behalf of the accused.
He pointed out that this was a strange case where the
material objects viz. one kilogram charas alleged to
have been seized from the custody of Jitendra, and
one kilogram ganja alleged to have been seized from
the possession of Jitendra’s mother, accused Sheela,
were not at all produced at the trial.”
It was further submitted that there was no material whatsoever to
prove that the samples that were dispatched to the FSL were actually
drawn from the seized material. The matter was considered by this Court
as under:
“6. In our view, the view taken by the High Court is
unsustainable. In the trial it was necessary for the
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State of Rajasthan vs. Sahi Ram
7
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 crossexamination 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.
7. The learned counsel for the appellants brought to
our notice two more facts. The High Court seems to
have relied on a copy of the letter dated 14-8-1999
written by the Superintendent of Police, Datia to the
Director, State Forensic Laboratory, Sagar and placed
reliance thereupon, although this was not a document
produced during the trial and proved according to law.
The High Court commented that the prosecution had
failed to exhibit the letter during the trial and that the
trial court was not vigilant in this respect. In the
absence of anyone affirming the correctness of the
contents of the letter, the High Court has placed
reliance on the contents of the letter merely on the
ground that the said document was mentioned at
Serial No. 9 in the charge-sheet, and presumably its
copy must have been supplied to the accused. This is
another lacuna, noticeable in the judgment of the High
Court.
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
8
8. The learned counsel for the appellant drew our
attention to the final report dated 3-10-1999 submitted
under Section 173 CrPC, from the original file. We
notice something peculiar here. In the final report, in
column 16, headed “Result of laboratory analysis”, it
is stated “report of FSL, Sagar is awaited”.
Interestingly, the report of the State Forensic
Laboratory, Sagar is dated 30-8-1999 (Ext. P-17)
certifying that the packets ‘A’, ‘B’ and ‘C’ sent to the
laboratory contained charas and ganja. It appears
strange to us that the final report submitted under
Section 173 CrPC on 3-10-1999, on which the chargesheet was based, was submitted by the police officer
concerned either without being aware of or without
reading the report of the Forensic Science Laboratory.
Or else, the Forensic Science Laboratory’s report is
ante-dated. This is another circumstance which
militates strongly against the prosecution.
9. Taking the cumulative effect of all the
circumstances, it appears to us that the material placed
on record by the prosecution does not bring home the
charge beyond reasonable doubt. We are of the view
that upon the material placed on record it would be
unsafe to convict the appellants. They are certainly
entitled to the benefit of doubt.” (emphasis added)
12. In Ashok alias Dangra Jaiswal v. State of Madhya Pradesh4
, it
was observed as under: -
“9. The seizure witnesses turning hostile may not be
very significant, as it is not an uncommon
phenomenon in criminal trials, particularly in cases
relating to NDPS but there are some other
circumstances which, when taken together, make it
very unsafe to uphold the appellant’s conviction.
10. The seizure of the alleged narcotic substance is
shown to have been made on 8-3-2005, at 11.45 in the
evening. The samples taken from the seized substance
were sent to the FSL on 10-3-2005, along with the
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State of Rajasthan vs. Sahi Ram
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draft, Ext. P-31. The samples sent for forensic
examination were, however, not deposited at the FSL
on that date but those came back to the police station
on 12-3-2005 due to some mistake in the draft or with
some query in respect of the draft. The samples were
sent back to the FSL on 14-3-2005, after necessary
corrections in the draft and/or giving reply to the
query and on that date the samples were accepted at
the FSL. From the time of the seizure in the late
evening of 8-3-2005, till their deposit in the FSL on
14-3-2005, it is not clear where the samples were laid
or were handled by how many people and in what
ways.
11. The FSL report came on 21-3-2005, and on that
basis the police submitted charge-sheet against the
accused on 31-3-2005, but the alleged narcotic
substance that was seized from the accused, including
the appellant was deposited in the malkhana about
two months later on 28-5-2005. There is no
explanation where the seized substance was kept in
the meanwhile.
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.”
Relying on the decision of this Court in Jitendra3
, the benefit of
doubt was given and the accused was acquitted.
13. In Vijay Jain v. State of Madhya Pradesh5
, it was submitted on
behalf of the accused, as is evident from para 4 of the decision, that there
was non-production of the contraband goods. This Court dealt with the
matter as under:-
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
10
“9. Para 96 of the judgment of this Court in Noor Aga
case2 on which the learned counsel for the State very
strongly relies is quoted hereinbelow: (SCC p. 464)
“96. Last but not the least, physical evidence
relating to three samples taken from the bulk
amount of heroin was also not produced. Even if
it is accepted for the sake of argument that the
bulk quantity was destroyed, the samples were
essential to be produced and proved as primary
evidence for the purpose of establishing the fact
of recovery of heroin as envisaged under Section
52-A of the Act.”
Thus in para 96 of the judgment in Noor Aga case2
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. (Emphasis added)
10. On the other hand, on a reading of this Court’s
judgment in Jitendra case3, 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 Ashok4 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
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
11
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 nonproduction 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 added)
14. In a recent decision dated 30th July, 2019 of this Court in Vijay
Pandey v. State of Uttar Pradesh6
the benefit was extended on the ground
that there was no co-relation between the seized samples and one that was
tested. Reliance was placed on the observations of this Court in Vijay
Jain5 which inter alia stated that there was no evidence to connect the
forensic report that the substance that was seized from the possession of
the accused. The relevant observations are to be found in para 8 of the
decision:
“8. The failure of the prosecution in the present case
to relate the seized sample with that seized from the
appellant makes the case no different from failure to
produce the seized sample itself. In the circumstances
the mere production of a laboratory report that the
samples tested was narcotics cannot be conclusive
proof by itself. The sample seized and that tested
6 Criminal Appeal No.1143 of 2019 @ SLP(Crl) No.1273 of 2019 decided on
30.07.2019
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
12
have to be co-related. The observations in Vijay
Jain5
, as follows are considered relevant:
10. On the other hand, on a reading of this Court’s
judgment in Jitendra case3, 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 Ashok4 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.” (emphasis added)
15. It is true that in all the aforesaid cases submission was advanced on
behalf of the accused that failure to produce contraband material before the
Court ought to result in acquittal of the accused. However in none of the
aforesaid cases said submission singularly weighed with this Court to
extend benefit of acquittal only on that ground. As is clear from decision
of this Court in Jitendra3
, apart from the aforesaid submission other facets
of the matter also weighed with the Court which is evident from paras 7 to
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
13
9 of the decision. Similarly in Ashok4
, the fact that there was no
explanation where the seized substance was kept (para 11) and the further
fact that there was no evidence to connect the forensic report with the
substance that was seized, (para 12) were also relied upon while extending
benefit of doubt in favour of the accused. Similarly, in Vijay Jain5
, 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 Pandey6
, 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.
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.
16. Turning to the facts in the present matter, the evidence of PW15
Surender Singh shows that from and out of 7 bags of poppy husk, samples
weighing about 500 grams were taken out of each bag. Out of these 3500
grams thus taken out, two samples of 500 grams were independently sealed
while rest 2500 grams were also sealed in a separate pouch. These samples
were marked A, B and C respectively. The bags were also independently
sealed and taken in custody and Exbt-5 seizure memo which recorded all
these facts was also signed by the accused. We have gone through the
Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
14
cross-examination of the witness. At no stage even a suggestion was put to
the witness that either the signatures of the accused were taken by fraud,
coercion or mis-representation or that the signatures were not of the
accused or that they did not understand the purport of the seizure memo. It
would therefore be difficult to even suggest that the seizure of contraband
weighing 223 kgs was not proved by the prosecution. In our view this fact
stood conclusively proven.
17. 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 this 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 kgs that it may not be
possible and feasible to produce the entire bulk before the Court. If the
seizure is otherwise proved, what is required to be proved is the fact that
the samples taken from and out of the contraband material were kept intact,
that when the samples were submitted for forensic examination the seals
were intact, that the report of the forensic experts shows the potency,
nature and quality of the contraband material and that based on such
material, the essential ingredients constituting an offence are made out.
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State of Rajasthan vs. Sahi Ram
15
18. In the aforesaid premises the conclusion drawn by the High Court
was completely unsustainable and the High Court erred in extending the
benefit of acquittal to the respondent. We, therefore, allow this appeal, set
aside the view taken by the High Court and restore the order of conviction
as recorded by the trial court against the respondent in its judgment and
order dated 01.08.2015. The minimum sentence of imprisonment for the
offence punishable under Section 8 read with 15 of the NDPS Act is 10
years.
Considering the facts on record, in our view the appropriate
sentence would be Rigorous Imprisonment for 10 years as substantive
sentence. We order accordingly, keeping the other parts of sentence
namely sentence of fine and sentence in default of payment of fine as
ordered by the trial court, intact and unchanged.
19. The appeal stands allowed in aforesaid terms.
20. We direct the respondent to surrender before the concerned Police
Station within seven days from today, failing which, the respondent shall
immediately be taken in custody by the concerned police station.
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State of Rajasthan vs. Sahi Ram
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A copy of this order of this Court shall be sent to the concerned
CJM as well as the Police Station for intimation and compliance.
………………………..J.
[Uday Umesh Lalit]
………………………..J.
[Vineet Saran]
New Delhi;
September 27, 2019.
