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TMI Blog2019 (9) TMI 1281X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, said Sohan and Kanhaiya Lal were marked as absconding accused in the tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ized 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 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 investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants. They are certainly entitled to the benefit of doubt." (emphasis added) 12. In Ashok alias Dangra Jaiswal v. State of Madhya Pradesh (2011) 5 SCC 123, 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 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 depos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 10 SCC 562, 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 Ashok (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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particularly when the panch witnesses have turned hostile. Again, in Ashok (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 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 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 evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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