TMI Blog2019 (9) TMI 1281X X X X Extracts X X X X X X X X Extracts X X X X ..... A, B and C respectively. The bags were also independently sealed and taken in custody and Exbt-5 seizure memo which recorded all these facts was also signed by the accused. Cross-examination of witnesses - HELD THAT:- At no stage even a suggestion was put to the witness that either the signatures of the accused were taken by fraud, coercion or mis-representation or that the signatures were not of the accused or that they did not understand the purport of the seizure memo. It would therefore be difficult to even suggest that the seizure of contraband weighing 223 kgs was not proved by the prosecution - In our view this fact stood conclusively proven. The conclusion drawn by the High Court was completely unsustainable and the High Court erred in extending the benefit of acquittal to the respondent - the view taken by the High Court is set aside and the order of conviction as recorded by the trial court against the respondent in its judgment and order dated 01.08.2015 is restored - appeal allowed. - Criminal Appeal No. 1497 of 2019 ( Arising out of SLP (Crl.) No. 8428 of 2016 ) - - - Dated:- 27-9-2019 - Uday Umesh Lalit And Vineet Saran, JJ. JUDGMENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial he stated:- Behind the driver s seat there were white plastic bags which were tied with strings, which were opened with the help of the police team and the witnesses, and smelled, and then everybody told it to be poppy husk. They were asked if they had any valid license for this poppy husk and they had told that they do not have any license. Their above act of all the three people was found to be punishable offence under section 8/15 NDPS Act due to which the bags were taken out of the vehicle, all the bags were weighed, then, in the 7 bags 223 kg poppy husk was found. 500 gm poppy husk was taken out from every bag and was weighed together and it came out to be 3500 gm. Out of this two samples of 500 gm each were put in plastic packets and were then put in white cloth bags and seal stamped. The sample was marked A and the control sample was marked B. the remaining 2500 gm sample was seal stamped and given mark C. ..All the three accused Sahi Ram, Sohan, Kanhaiya Lal were given notices under section 52 and were arrested. I recognize all the three accused, who are today not present in the court. The notice given to witness Kishan is Exib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2004) 10 SCC 562 , Ashok alias Dangra Jaiswal v. State of Madhya Pradesh (2011) 5 SCC 123 and Vijay Jain v. State of Madhya Pradesh (2013) 14 SCC 527 it was observed that failure to exhibit Muddamal and contraband material was fatal to the case of prosecution. The High Court observed:- .Non-exhibition of the Muddamal in the court leads to the irrefutable conclusion that the prosecution failed to lead primary evidence of the seizure and thus, the entire evidence of the prosecution regarding the alleged recovery has to be discarded. Since in the case at hand, the prosecution failed to exhibit the Muddamal in the court, the entire evidence of the prosecution regarding alleged seizure has to be discarded. With the aforesaid view, the High Court allowed the appeal, set aside the Judgment and Order dated 01.08.2015 passed by the Special Judge and acquitted the respondent of the charge levelled against him. 9. We heard Dr. Manish Singhvi, learned Senior Advocate for the State and Mr. Saurabh Ajay Gupta, learned Advocate for the respondent. 10. At the outset, it must be considered whether the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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. 7. 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 14-8-1999 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. 8. The learned counsel for the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 12. Last but not the least, the alleged narcotic powder seized from the possession of the accused, including the appellant was never produced before the trial court as a material exhibit and once again there is no explanation for its non-production. There is, thus, no evidence to connect the forensic report with the substance that was seized from the possession of the appellant or the other accused. Relying on the decision of this Court in Jitendra (2004) 10 SCC 562 , the benefit of doubt was given and the accused was acquitted. 13. In Vijay Jain v. State of Madhya Pradesh (2013) 14 SCC 527 , it was subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 the prosecution has not produced the brown sugar before the Court and has also not offered any explanation for nonproduction of the brown sugar alleged to have been seized from the appellants and as the evidence of the witnesses (PW 2 and PW 3) to the seizure of the materials does not establish the seizure of the brown sugar from the possession of the appellants, the judgment of the trial court convicting the appellants and the judgment of the High Court maintaining the conviction are not sustainable. (emphasis added) 14. In a recent decision dated 30th July, 2019 of this Court in Vijay Pandey v. State of Uttar Pradesh Criminal Appeal No.1143 of 2019 @ SLP(Crl) No.1273 of 2019 decided on 30.07.2019 the benefit was extended on the ground that there was no co-relation between the seized samples and one that was tested. Reliance was placed on the observations of this Court in Vijay Jain5 which inter alia stated that there was no evidence to connect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Criminal Appeal No.1143 of 2019 @ SLP(Crl) No.1273 of 2019 decided on 30.07.2019 , 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. It is thus clear that in none of the decisions of this Court, nonproduction of the contraband material before the Court has singularly been found to be sufficient to grant the benefit of acquittal. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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