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2020 (3) TMI 139 - SC - Indian LawsSmuggling - Contraband item - Opium - Non-production of independent witnesses - compliance with the requirements of Section 50 of NDPS Act or not. 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 of Section 50 and on a telephone message, the DSP arrived at the spot - HELD THAT:- On the one hand, in this case, the very same officer has deposed that he reached the spot at about 01:30 P.M. and the ASI has deposed that he remained at the spot till 03:00 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 02:30 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. Violation of Section 50 - HELD 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. Non-production of contraband articles - HELD THAT:- In the facts of this case, no doubt the contraband article weighed 6 kg 300 gms. A perusal of the judgment of the Trial Court does not appear to suggest 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 - there is no hesitation to reject the contention of the appellant. 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? - HELD THAT:- We have noticed the evidence which is referred to by the appellant to criticize the impugned judgment on this score. Two courts have reposed confidence in the deposition of the prosecution witnesses - we do not think that a case has been made for overturning the verdict of guilt returned against the appellant. Though there appears to be doubt created about whether the DSP was present, upon being called by PW7 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, there are no merit in the argument of the appellant. 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 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. Appeal stands dismissed - Since the appellant is on bail, her bail bond shall stand cancelled.
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