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TMI Blog2018 (8) TMI 962X X X X Extracts X X X X X X X X Extracts X X X X ..... victed him under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced him to undergo ten years imprisonment. 2. Briefly stated case of the prosecution is that on 30.04.1998, Joginder Singh, SI, Police Station Sadar Ludhiana (PW-2) along with other police officials was checking the vehicles on the bridge of Gill Canal towards the side of village Gill. Meanwhile, at about 7.00-7.30 pm, appellant Mohinder Singh came on his scooter No.PB-10B-2413. A signal was given to stop the scooter and the appellant/accused stopped his scooter. It was suspected that some contraband substance was being carried in the bag. Appellant/accused was informed of his right of search before a Gazetted Officer or a Magistra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that no order of the Magistrate was proved to show that the case property was produced before the court, was brought in evidence to show that the seal of the sample sent to FSL tallied with the seal of the contraband, and it cannot thus be said that the evidence regarding such production of case property before the Magistrate was trustworthy. Being aggrieved by the acquittal, the State has preferred appeal before the High Court. 5. Placing reliance upon State of Punjab v. Baldev Singh (1998) 2 SCC 724, the High Court held that recovery of contraband from a bag/attache which the accused was carrying in his hands, would not amount to search of person and as such Section 50 of the NDPS Act will not apply. Based on the evidence of SI Joginde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y proves the production of the contraband along with the sample packets before the Magistrate. It was submitted that the trial court was not right in acquitting the accused and the High court rightly set aside the acquittal and the impugned judgment does not warrant any interference. 8. We have considered the submissions and perused the impugned judgment, evidence and other materials on record. We have also taken pains to look into the original records that were called for from the trial court. 9. On behalf of the appellant, contention was raised as to the non-compliance of Section 50 of the NDPS Act to submit that the safeguards stipulated under Section 50 were not complied with. In the present case, the appellant was carrying the contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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. 12. For proving the offence under the NDPS Act, it is necessary for the prosecution to establish that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke out an offence under the NDPS Act particularly when the panch witnesses have turned hostile. Again, in Ashok v. State of M.P. (2011) 5 SCC 123, 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 nonproduction 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." 14. The High Court appears to have gone by the oral evidence of Joginder Singh (PW-2) and Harbhajan Singh (PW-3) that the contraband allegedly seized from the accused was produced before the Magistrate. When the trial court which is in p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental princip ..... X X X X Extracts X X X X X X X X Extracts X X X X
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