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CASE NO.:

Appeal (crl.) 1318-1319 of 2002

PETITIONER:

JITENDRA AND ANR.

RESPONDENT:

STATE OF M.P.

DATE OF JUDGMENT: 18/09/2003

BENCH:

K.G. BALAKRISHNAN & B.N. SRIKRISHNA

JUDGMENT:

JUDGMENT

2003 Supp(3) SCR 918

The Judgment of the Court was delivered by

SRIKRISHNA, J. : These two appeals by special leave are directed against a

common judgment of the Madhya Pradesh High Court rendered in Criminal

Appeal No. 411/2000 and Criminal Appeal No. 414/2000 convicting the

appellants herein, Jitendra s/o Vijay Narayan @ Virendra Raghuwanshi and

Smt. Sheela @ Chandrawati, under the Narcotic Drugs and Psychotropic

Substances Act, 1985.

According to the prosecution case Inspector Rajendra Pathak (PW7) of Police

Station, Datia, received secret information at 5 p.m. on 12th August, 1999

that in front of the house of one Rampyari Bilganiya her tenant was

standing with a scooter without number plate and was likely to transport

charas and opium. S.D.O.(P) Angad Singh (PW8) was present at the police

station when this information was received. A constable was sent to call

two independent witnesses Sandeep (PW2) and Mukesh (PW3). The police party

thereafter left for the house of Rampyari at 5.30 p.m. According to the

prosecution's version, accused Jitendra (Appellant in appeal No. 411/2000)

was standing in front of the house of Rampyari along with a scooter. On a

request by the Police Officer that he may be permitted to search the dicky

of the scooter, and after being apprised that the search may be given

either to the Police Officer present or to the Magistrate, the accused

Jitendra agreed that the search may be taken by the Police Officer. The

Police Officer opened the dicky with a key supplied by Jitendra. This

search resulted in recovery of five packets of charas in a polythene bag

along with currency notes worth Rs. 20,000. The charas weighed one kilogram

out of which two samples of 100 grams each were taken out and sealed.

Thereafter, the police party accompanied by a lady constable Pushpa (PW5),

who was called from the police station, entered the house of Smt. Sheela @

Chandrawati, accused Jitendra's mother. The house of Smt. Sheela was

searched and one kilogram of ganja was recovered from the house. That was

seized by a seizure memo. Two samples of 200 grams were taken out and

sealed as per the panchanama. The samples were sent to the Forensic Science

Laboratory, Sagar for chemical examination. The Chemical Examiner opined

that the samples were charas and ganja respectively. The accused were

charged with offences under Section 8 read with Section 18 and Section 8

read with Section 20 of the Narcotic Drugs and Psychotropic Substances Act,

1985 (hereinafter referred to as 'the NDPS, Act'). The Special Judge after

trial acquitted both the accused of the charge under Section 8 read with

Section 18 but convicted the accused Jitendra and Sheela for offences under

Section 20(b) of the NDPS, Act. After a hearing on the question of

punishment, appellant Jitendra was sentenced to rigorous imprisonment for

10 ten years and fine of Rs. one lakh and in default to a further sentence

of two years rigorous imprisonment. The Appellant Sheela @ Chandrawati was

sentenced to rigorous imprisonment for three years with a fine of Rs. 5000

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and in default to a further term of rigorous imprisonment of six months.

Both the convicted accused appealed to the High Court. The High Court

maintained the convictions and sentence imposed upon Jitendra and dismissed

his appeal. As far as Smt. Sheela was concerned, the High Court reduced the

sentence of imprisonment to the period undergone in custody, which was

about 14 months, and reduced the fine to Rs. 2,000 by partly allowing her

appeal.

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. Though it was the case of the prosecution that the

recovered articles of drugs were kept in the Malkhana, neither were the

material objects producd in the trial, nor was the Malkhana Moharir

examined during the trial to prove that the packets in which the samples

were sealed had remained in Malkhana from the time of their receipt to the

time of their despatch to the Forensic Science Laboratory. He urged that

there was no material whatsoever before the trial court to prove that the

samples which were despatched to the Forensic Science Laboratory were

actually drawn from the drugs alleged to have been seized from the two

accused. The learned counsel also urged that the provisions of Section 52A

of the NDPS, Act are mandatory and that there was a violation of these

provisions in the matter of drawing of samples as the samples had been

drawn without the requisite order of the Magistrate as contemplated under

Section 52A. The learned counsel also urged certain other legal issues, but

it is not necessary to consider them, since, in our view, the accused are

entitled to succeed on the first contention of the learned counsel.

The evidence to prove that charas and ganja were recovered from the

possession of 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 (PW7), Angadsingh (PW8) and

sub-Inspector D.J. Rai (PW6), there is no independent witness as to the

recovery of the drugs from the possession of 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 it with the samples

sent to the Forensic Science Laboratory. There is no material produced in

the trial, apart from the interested testimony of 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 of the Cr. C.P. to hold

that non-production of the material object was a mere procedural

irregularity and did not cause prejudice to the accused.

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

prossession 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 panchanama does

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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

panchanama is nothing but a document written by the concerned police

officer. The suggestion made by the defence in cross-examination is worthy

of notice. It was suggested to the prosecution witnesses that the landlady

of the house in collusion with 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 pancha 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 fatched.

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

14th August, 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.

The learned counsel for the appellant drew our attention to the final

report dated 3.10.1999 submitted under Section 173 of Cr. P.C., from the

original file. We notice something peculiar here. In the final report, in

Column No. 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 (Ex.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 of

Cr.P.C. on 3.10.1999, on which the charge sheet 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.

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.

In the resutl we allott the appeals, set aside the judgment of the High

Court and the trial court and quash the convictions of the appellants. The

appellant-Jitendra is directed to release from custody forthwith, if not

required in any other case.