K.M. Joseph, J.— The appellant was Accused 1 before the trial court and the appellant before the High Court, which, by the impugned judgment Criminal Appeal No. 2113 of 2005, confirmed the judgment of the trial court and convicted her under Section 18 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (the NDPS Act).
2. The prosecution case, briefly put, is as follows : on 10-4-2004, ASI PW 7 and other police officials noticed the appellant and another accused approaching from 8, Marla Colony carrying a bag in their hands. On seeing the police party, the accused allegedly turned back and started walking briskly. This aroused suspicion in the mind of the ASI. He intercepted them. The bag was suspected to contain narcotic items. The accused were informed that if they so desired, they could have search of the bag in the presence of a gazetted officer or Magistrate. The appellant desired search by a gazetted officer. The DSP came to the spot. On his directions, the search was carried out. The bag contained on weighment 6 kg 300 gm of opium. 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 the 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 as 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 1.30 p.m. There is evidence that he remained there till about 3.00 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 2.30 p.m. The question is, therefore, as to how the same person under whose gaze, the search was allegedly carried out, could be present at two different places at the same time. This brought under a cloud, the entire prosecution case runs the argument. Next, it is contended that the contraband, allegedly 6 kg 300 gm, was not produced before the court. This vitiated the conviction. In this regard, reliance was placed on the following judgments of this Court:
(1) Jitendra v. State of M.P. (2004) 10 SCC 562;
(2) Ashok v. State of M.P. (2011) 5 SCC 123; and
(3) Gorakh Nath Prasad v. State of Bihar (2018) 2 SCC 305.
5. No doubt, the learned counsel also draws our attention to the judgment of this Court in State of Rajasthan v. Sahi Ram (2019) 10 SCC 649, where a contra view is essentially taken based on the fact that if a large quantity of contraband is involved, it may not be necessary to produce.
6. The next contention urged by the learned counsel for the appellant is that, though, it may be true that for searching the bag carried out by the accused, it may not be necessary to comply with the requirements of Section 50 of the Act but if there is also a personal search, Section 50 is attracted. In this context, he drew our attention to the judgment of the Bench of two learned Judges reported in Dilip v. State of M.P. (2007) 1 SCC 450 Therein, it is, inter alia, stated as follows :
“16. In this case, the provisions of Section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the person of the appellants was also searched, it was obligatory on the part of PW 10 to comply with the said provisions. It was not done.”
7. In fact, when it was pointed out by the learned counsel for the appellant that the aforesaid view has been disapproved by a Bench of three learned Judges in the decision in State of Punjab v. Baljinder Singh (2019) 10 SCC 473, he pointed out that, in fact, a Bench of three learned Judges has come to rely on the decision by the Bench of two learned Judges in the judgment in Raju v. State of W.B. (2018) 9 SCC 708
8. The last contention by the learned counsel for the appellant is that the prosecution has not associated any independent witness in support of its case. He points out by referring to the judgment 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, the learned counsel for the State would submit that the time of arrival of Shri 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 dispute raised by the counsel, in fact, that the contraband article, as such, is not produced. However, he pointed out that there is the FSL report. He supports the judgment of the High Court in regard to the non-production of any independent witness.
10. The first question which falls for our consideration is whether there is merit in the contention of the appellant that no independent witness is produced. In this regard, the testimony of PW 6 is relied upon. In his cross-examination, he has, inter alia, stated as follows:
It was a busy place; people were passing thereby. Some persons from the public were called but they were reluctant but no action was taken. Resident of Kabri was asked to join the investigation. Sunil, Gulshan, were also do so. They were there at about 1 : 00 p.m. I did not know Prem was Sarpanch or not of the village. They stopped for about 5 minutes at the spot. Some people were called from the nearby shop but I do not know their names or the name of the shop.
11. It is, therefore, the case of the appellant that, this is not a case where independent witnesses could not have been associated with the investigation and the prosecution.
12. We will deal with this after we also consider the other aspects. The next aspect which is highlighted, as already noticed, was the 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 with Section 50 and on a telephone message, the DSP arrived at the spot.
13. In his deposition, it is true that the gazetted officer (DSP) has deposed, inter alia, as follows:
He received a telephone call on his mobile phone from ASI. It was at about 1.10 p.m., he received the call. He reached the spot at about 1.30 p.m.
The ASI examined as PW 7, has stated that the accused was apprehended at about 1.00 p.m. and they remained at the spot till 4.30 p.m. Notice under Section 50 of the Act, was given at about 1.05 p.m. Message to the DSP was sent telephonically by about 1.05 p.m. He does not remember from the name of the shop from which the telephone call was made. The DSP/gazetted officer was present in the office at that time. The DSP came at about 1.20 p.m. He remained at the spot till 3.00 p.m.
14. The case of the appellant is based on the following testimony 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. Herra Lal), he states, inter alia, as follows:
On 10-4-2004, he was posted as DSP, Headquarters 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 up to 2.30 p.m. He reached the spot or place of occurrence at about 12.20 p.m. The distance to the spot from his office was stated to be 2.5 km.
15. Thus, on the one hand, in this case, the very same officer has deposed that he reached the spot at about 1.30 p.m. and the ASI has deposed that he remained at the spot till 3.00 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 2.30 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.
16. As regards the contention of violation of Section 50 it is based on there being personal search of the accused. PW 6, the ASI has, inter alia, stated as follows:
Personal search of accused was taken by the lady constable under the shadow of the jeep. I do not remember … I do not remember the direction of the jeep under which the personal search of the accused was taken. The lady constable has alone taken away the accused for personal search … I do not remember whether at the time of personal search driver of the jeep was in the jeep or not.
17. The learned counsel for the appellant drew our attention to the judgment of this Court in Dilip (2007) 1 SCC 450. Therein, a Bench of two learned Judges held, inter alia, as follows :
“16. In this case, the provisions of Section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the person of the appellants was also searched, it was obligatory on the part of PW 10 to comply with the said provisions. It was not done.”
18. No doubt we notice the judgment of this Court rendered by a Bench of three learned Judges in Raju (2018) 9 SCC 708. Therein, the Court referred to the judgment in Dilip (2007) 1 SCC 450, and thereafter, went on to, inter alia, hold as follows:
“As soon as the search of the person take place the requirement of mandatory compliance with Section 50 is attracted irrespective of whether contraband is recovered from the person of the detainee or not.”
19. In the said Raju case (2018) 9 SCC 708, the Court went on to hold that requirement of Section 50 was complied with. However, we notice a later development in the form of a judgment rendered by a Bench of three learned Judges touching upon the correctness of the view expressed in Dilip (2007) 1 SCC 450 as contained in para 16 of the judgment.
20. In Baljinder Singh (2019) 10 SCC 473, this Court elaborately considered the matter with reference to the applicability of Section 50 in a case where there is a personal search also.
21. This was the case where 7 bags of poppy husk each weighing 34 kg were found from the vehicle. A personal search of the accused was undertaken after their arrest which did not lead to any recovery of contraband. The High Court 2019 SCC OnLine P&H 2119 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 (2019) 10 SCC 473, went on to consider the law laid down by the Constitution Bench in Baldev Singh (1999) 6 SCC 172 and, inter alia, held as follows : (Baljinder Singh case (2019) 10 SCC 473)
“16. Conclusion (3) as recorded by the Constitution Bench in para 57 of its judgment in Baldev Singh (1999) 6 SCC 172 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 with the requirements of Section 50 of the Act. But the search of the vehicle and recovery of contraband pursuant thereto having stood proved, merely because there was non-compliance with Section 50 of the Act as far as “personal search” was concerned, no benefit can be extended so as to invalidate the effect of recovery from the search of the vehicle. Any such idea would be directly in the teeth of Conclusion (3) as aforesaid.
18. The decision of this Court in Dilip case (2007) 1 SCC 450, however, has not adverted to the distinction as discussed hereinabove and proceeded to confer advantage upon the accused even in respect of recovery from the vehicle, on the ground that the requirements of Section 50 relating to personal search were not complied with. In our view, the decision of this Court in the said judgment in Dilip case (2007) 1 SCC 450 is not correct and is opposed to the law laid down by this Court in Baldev Singh (1999) 6 SCC 172 and other judgments.”
22. Having regard to the judgment by the three-Judge Bench, which directly dealt with this issue viz. the correctness of the view in Dilip (2007) 1 SCC 450 reliance placed by the appellant on para 16 may not be available. As already noticed, we are not oblivious of the observation which has been made in the other three-Judge Bench judgment of this Court in Raju (2018) 9 SCC 708, which it appears, was not brought to the notice to the Bench which decided the case later in Baljinder Singh (2019) 10 SCC 473. We notice however that the later decision draws inspiration from the Constitution Bench decision in Baldev Singh (1999) 6 SCC 172. We also notice 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.
23. The complaint, of non-production of the seized material, is based on case law of this Court originating with the judgment of this Court in Jitendra (2004) 10 SCC 562. It is necessary to survey the case law beginning with Jitendra (2004) 10 SCC 562. In the said case, it is necessary to notice certain facts. There were panch witnesses for the recovery examined by the prosecution. They turned hostile. Apart from the prosecution witnesses PW 7, PW 8 and PW 6, there was found no independent witness regarding recovery. It is worthwhile to set out para 6. It reads as under :
“6. In our view, the view 2001 SCC OnLine MP 411, (2002) 2 MP LJ 157 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)
24. We notice that this decision came to be followed in the judgment reported in Ashok (2011) 5 SCC 123. Therein, the Court noted, apart from seizure witness turning hostile, which was found to be not an uncommon phenomenon, certain other features, as are narrated in paras 10 and 11, which read as under :
“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 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.”
25. It is thereafter the Court noted that last but not the least the narcotic powder was never produced in the trial court as a material object and again there was no explanation for its non-production. It was found that there was no evidence to connect forensic report with the substance that was seized from the possession of the appellant or the other accused (see para 12). It was in these circumstances the Court drew support from the judgment of this Court in Jitendra (2004) 10 SCC 562. The appellant has not been able to demonstrate in the facts of this case any facts which could be likened to the facts stated in paras 10 and 11. At least nothing was urged by the learned counsel for the appellant on these lines.
26. The next judgment to be noticed is Vijay Jain v. State of M.P. (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 para 5). It was a case where a suitcase was produced as containing the alleged contraband. In regard to the suitcase, the evidence of PW 11 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 PW 11 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 PW 3 has stated before the court that those samples were not prepared in his presence. PW 2 had stated that the witnesses were not taken to the site where the materials were seized. In Gorakh Nath Prasad (2018) 2 SCC 305, the Court noted that neither the seized ganja nor the sample drawn at the time of seizure was produced. The investigating officer, PW 7 deposed there were no MR No. on the sealed material. He was also not sure whether the seized material had been kept at the malkhana and also that it had not been produced in the court. The independent witness with regard to the search and seizure, PW 2 and PW 3 turned hostile. In these circumstances, it appears the Court went on to hold that non-production of the seized material was therefore fatal to the prosecution case. The Court thereafter referred to the judgment of Ashok (2011) 5 SCC 123 following Jitendra (2004) 10 SCC 562. Lastly, we notice the judgment of this Court in Mohinder Singh v. State of Punjab (2018) 18 SCC 540. It was rendered by a Bench of three learned Judges. It was a case where the trial court had acquitted the appellant noticing, inter alia, that no order of the Magistrate was proved to show that the case property was produced before the court. The High Court 2010 SCC OnLine P&H 13093 went on to reverse the acquittal and convicted the appellant. It is worthwhile to notice what this Court had said in the facts of this case : (Mohinder Singh case (2018) 18 SCC 540)
“10. So far as the contention regarding production of the contraband seized from the accused, in his evidence, Harbhajan Singh (PW 3) stated that on 1-5-1998, he produced the sample parcels and the case property parcels with the seal and the sample seals before the Judicial Magistrate, Ludhiana and the Magistrate has recorded the seals tallied with the specimen impression. Harbhajan Singh (PW 3) further stated that after return of the samples and the parcels from the court, the same were lodged by him to the Malkhana on 1-5-1998 itself. Baldev Singh (PW 5) the then Malkhana incharge though orally stated about the deposit of the contraband in the Malkhana, but Baldev Singh (PW 5) has not produced Register No. 19 maintained in the Malkhana to show the relevant entry in Register No. 19 as to deposit of the case property in the Malkhana. Oral evidence of Harbhajan Singh (PW 3) and Baldev Singh (PW 5) as to the deposit of the contraband seized from the accused with Malkhana is not corroborated by the documentary evidence, namely, the entry in Register No. 19.
11. After referring to the oral evidence of Joginder Singh (PW 2) and Harbhajan Singh (PW 3), the trial court in para 14 of its judgment has recorded the finding that no order of the Magistrate to prove the production of the contraband before 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.”
27. Finally, it is necessary also to refer to para 12 regarding the observation made therein. It would assume relevance, which reads as follows : (Mohinder Singh case (2018) 18 SCC 540)
“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.”
28. For determining the exact provision applicable under the law viz. whether the offence relates to commercial quantity or the other categories, it may be necessary.
29. In the facts of this case we, however, notice certain features. Before the trial court, the contention as such that not been raised about the non-production of the contraband articles. We may also however refer to the judgment of this Court in Sahi Ram (2019) 10 SCC 649. This was a case where the vehicle was searched, during which 7 bags of poppy straw, the gross weight being 233 kg, were found behind the driver's seat. Samples were taken. The High Court in appeal by the respondent found that only 2 sample packets and one bag of poppy straw weighing 2.5 kg were produced and relying upon the case law which we have referred to, acquitted the respondent. The Court also noted para 9 of the judgment in Jitendra (2004) 10 SCC 562 where the Court observed, taking the cumulative effect of all circumstances, it was not sufficient to bring home the charge. The Court also referred to the judgment of this Court in Mohinder Singh (2018) 18 SCC 540.
30. The Court also went to hold in Sahi Ram (2019) 10 SCC 649 that if seizure is otherwise proved on record and it is not even doubted or disputed, it need not be placed before the Court. The Court further held that if the seizure is otherwise proved what is required to be proved is the fact that samples taken out of a contraband are kept intact. This Court held as follows :( & 18)
“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 the said submission singularly weighed with this Court to extend benefit of acquittal only on that ground. As is clear from the decision of this Court in Jitendra (2004) 10 SCC 562, apart from the aforesaid submission other facets of the matter also weighed with the court which is evident from paras 7 to 9 of the decision. Similarly in Ashok (2011) 5 SCC 123, 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 Jain (2013) 14 SCC 527, 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 (2019) 18 SCC 215, 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, non-production of the contraband material before the court has singularly been found to be sufficient to grant the benefit of acquittal.
***
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 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.”
31. In the facts of this case, no doubt the contraband article weighed 6 kg 300 gm. A perusal of the judgment of the trial court does not appear to suggest that 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. We further notice that in the deposition of the investigating officer (PW 7), he has stated as follows:
“The case property is Ext. P-1, sample is Ext. P-2, sample seal is Ext. P-3 and the bag in which the case property was recovered from the possession of the accused present in the court is Ext. P-4.”
32. In the facts of this case, we have no hesitation to reject the contention of the appellant.
33. Next aspect, which we consider is, 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. We have noticed the evidence which is referred to by the appellant to criticise the impugned judgment on this score. Two courts have reposed confidence in the deposition of the prosecution witnesses.
34. The investigating officer, PW 7, when examined, has stated as follows:
“ … At the time of apprehension of the accused none from the public was there. There were shops but there was no residential house. Residential colony is at some distance. No woman from the locality was called. Some respectables were tried to be called. I do not remember the names of the said persons. Prem Singh, son of Raja Ram resident of Kahri, Sunil, son of Ram Mehar resident of Panipat, Gushan Kumar, son of Gainda Ram resident of 8, Marla Colony, Panipat were asked to do so. It was about 2 p.m. DSP had also arrived. The aforesaid persons remained with us for 5/10 minutes. They had showed their inability to such a nature that I did not think it proper to take legal action against them. No shopkeeper was called…”
35. 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.
36. In the circumstances, as noted above, though there appears to be doubt created about whether the DSP was present, upon being called by PW 7 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 (2019) 10 SCC 473, we do not find merit in the argument of the appellant.
37. 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 the 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 appeal stands dismissed. Since the appellant is on bail, her bail bond shall stand cancelled.