Hari Bahadur vs State Of Himachal Pradesh

Rakesh Kainthla, J

The present appeal is directed against the judgment and order dated 08.09.2022 passed by learned Special Judge-I, Kullu, District Kullu, H.P. (learned Trial Court) vide which the appellant (accused before learned Trial Court) was convicted of the commission of an offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’) and was sentenced to undergo rigorous imprisonment for 10 years, pay a fine of ₹1,00,000/- and, in default of payment of the fine, to undergo furthersimple imprisonment for six months. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

Briefly stated, the facts giving rise to the present appeal are that the police presented a challan before the learned Trial Court for the commission of an offence punishable under Section 20 of the NDPS Act. It was asserted that ASI Nand Lal (PW13), HC Kesar Singh (PW-10) and Constable Murlidhar (PW-11) were on patrolling duty on 13.08.2017 in a private vehicle bearing registration No. HP34B-3533. They reached Burji Mour at about 12:45 a.m. when they saw the accused coming from Malana. The police became suspicious of the movement of the accused in the middle of the night at a lonely place; hence, ASI Nand Lal (PW-13) asked HC Kesar Singh (PW-10) to stop the vehicle. The vehicle was stopped. ASI Nand Lal (PW-13) made enquiries from the accused in the presence of official witnesses. The accused could not give any satisfactory reply regarding his movement in the middle of the night. The accused was carrying a bag on his shoulder. He appeared to be frightened. Hence, the police thought it proper to search the accused. The place was lonely and deserted. No independent witness was available. No person or vehicle was moving on the road. Hence, ASI Nand Lal (PW-13) associated HC Kesar Singh (PW-10) and LHC Murlidhar (PW-11) and enquired about the name and address of the accused. The accused revealed his name as Hari Bahadur. The bag had one main pocket, which was zipped. The zip was opened, and two packets, wrapped with Khaki Cello tape and one packet wrapped with transparent polythene, were found in it. ASI Nand Lal (PW-13) removed the Cello Tape and the transparent polythene. He found eight (8) packets each in two packets and six (6) packets in the third packet. In this manner,twenty-two (22) packets were recovered. All the packets were opened and checked, and black cubes were found in each of the packets. ASI Nand Lal (PW-13) smelled the cubes and found them to be cannabis. He weighed the cannabis and found its weight to be 2 kg. 96 grams. The cannabis was put in the bag alongwith the Khaki Cello Tape and transparent polythene. The bag was put in a cloth parcel, and the parcel was sealed with six impressions of seal “V”. The NCB-I form (Ext.PW-6/D) was filled in triplicate. Seal impression ‘V’ was put on the NCB-I form. Sample seal impression (Ext.PW-10/A) was put on a separate piece of cloth, and the seal was handed over to HC Kesar Singh (PW-10) after the use. The parcel containing the NCB-I form and sample were sealed vide seizure memo (Ext.PW-10/B). ASI Nand Lal (PW-13) prepared a rukka(Ext.PW-7/A) and handed it over to LHC Murlidhar (PW-11) with a direction to carry it to the Police Station. F.I.R. (Ext. PW-7/B) was registered in the police station based on rukka. ASI Nand Lal (PW-13) conducted the investigation. He prepared the spot map (Ext.P-1/PW-13). He arrested the accused vide memo (Ext.P-2/PW-13). The personal search of the accused was conducted, and a memo (Ext. P-3/PW-13) was prepared. ASI Nand Lal (PW-13) produced the accused and the case property before Inspector Ashok Kumar (PW-7), who resealed the parcel with four seal impressions of seal ‘M”. He obtained a sample seal impression (Ext.PW-7/D) on a separate piece of cloth. He filled columns No. 9 to 11 of the NCB-I form (Ext.PW-6/D) and put seal impression ‘M’ on the form. He issued the resealing certificate (Ext.PW-6/B) and handed over the case property, sample seal and documents to HC Param Chand (PW-6) on the same day. HC Param Chand made an entry in the Malkhana register (Ext.PW-6/A) and deposited the case property in the Malkahana. He handed over the case property, sample seal and documents to Constable Lot Ram (PW-3) with the direction to carry them to FSL Junga vide RC No. 243 of 2017 (Ext.PW-6/C). Lot Ram (PW-3) deposited all the articles in a safe condition at FSL Junga and handed over the receipt to HC Param Chand (PW-6) on his return. Special Report (Ext. PW-4/A) was prepared and handed over to ConstableInder Dev (PW-4) on 14.08.2017 with the direction to carry it to the Additional Superintendent of Police, Kullu, District Kullu, H.P. Constable Inder Dev (PW-4) handed over the Special Report to Additional S.P. N.S.Negi, on the same day. N.S. Negi made an endorsement on the Special Report and handed it over to his Reader, ASI Nirat Singh (PW-8). ASI Nirat Singh (PW-8) made the entry in the Special Report Register (Ext.PW-8/A) and retained the special report on record. The result of the analysis (Ext.P-4/PW-13) was issued, in which it was shown that the exhibit was an extract of cannabis and a sample of charas, which contained 48.14% w/w resin. The statements of the witnesses were recorded as per their version, and after the completion of the investigation, the challan was prepared and presented before the Court.

The learned Trial Court charged the accused with the commission of an offence punishable under Section 20 of the NDPS Act, to which the accused pleaded not guilty and claimed to be tried.

The prosecution examined 13 witnesses to prove its case. Constable Yash Pal (PW1) brought the case property and the result of result of analysis from FSL Junga. Constable Narender Kumar (PW-2) and HC Ram Krishan (PW-5)proved the entries in the daily diary. Constable Lot Ram (PW-3) carried the case property to FSL Junga. Constable Inder Dev (PW-4) carried the Special Report to Additional S.P. HC Param Chand (PW-6) was working as MHC with whom the case property was deposited. Inspector Ashok Kumar (PW-7) was working as a Station House Officer (SHO), who resealed the parcel. ASI Nirat Singh (PW-8) was posted as Reader to Additional S.P Kullu, to whom the Special Report was handed over. SI Jai Singh (PW-9) carried the case property to the Court for certification of inventory. HC Kesar Singh (PW-10) and Constable LHC Murlidhar (PW-11) are official witnesses to recovery. ASI Inder Dev (PW-12) investigated the case. ASI Nand Lal (PW-13) effected the recovery and conducted the initial investigation of the case.

The accused, in his statement recorded under Section 313 of Cr.P.C., denied the prosecution case in its entirety. He stated that he was waiting for a bus at Jari from where the police took him to Police Post Jari and planted a false case upon him. No defence was sought to be adduced by the accused.

The learned Trial Court held that the testimonies of the prosecution witnesses were consistent and corroborated each other. There was nothing in their cross-examinations to doubt their testimonies. The accused was apprehended in the middle of the night, and it was not possible to associate any independent witnesses. The defence version that the accused was taken to the police post-Jari and a false case was planted upon him was not established on the record. Therefore, the accused was convicted and sentenced as aforesaid.

Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Trial Court, the accused has preferred the present appeal asserting that the learned Trial Court had not properly appreciated the evidence on record. The judgment and order are based on the conjectures and surmises. There are material contradictions and improvements in the statements of prosecution witnesses. These were ignored by the learned Trial Court. The link evidence is missing, therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.

We have heard Mr.Naresh Kumar Sharma, learned counsel for the appellant/accused, and Ms. Seema Sharma, learned Deputy Advocate General for the respondent/State.

Mr Naresh Kumar Sharma, learned counsel for the appellant/accused, submitted that there are major contradictions and improvements in the testimonies of the official witnesses. No independent witness was associated, and the prosecution case is highly doubtful. The case property was not produced before the Court, and this is fatal to the prosecution case. Hence, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.

Ms. Seema Sharma, learned Deputy Advocate General for the respondent/State, supported the judgment and order passed by the learned Trial Court and submitted that it was a case of chance recovery; therefore, it was not possible to associate any independent witnesses. Minor contradictions in the statements of official witnesses are not sufficient to discard them. Therefore, she prayed that the present appeal be dismissed.

We have given considerable thought to the submissions made at the bar and have gone through the records carefully.

The specific case of the prosecution was that the police party proceeded in a private vehicle when they noticed the accused at 12:45 a.m. coming with a bag on his shoulder. The police became suspicious of the movement of the accused in the middle of the night and apprehended him. There is nothing in the cross-examination of the witnesses to show that the police had any prior information. Thus, it was a case of a chance recovery. It was laid down by the Hon'ble Supreme Court in Kashmira Singh Versus State of Punjab 1999 (1) SCC 130 that the police party is under no obligation to join independent witnesses while going on patrolling duty, and the association of any person after effecting the recovery would be meaningless. It was observed:

“3. Learned counsel for the appellant has taken us through the evidence recorded by the prosecution as also the judgment under appeal. Except for the comment that the prosecution is supported by two police officials and not by any independent witness, no other comment against the prosecution is otherwise offered. This comment is not of any value since the police party was on patrolling duty, and they were not required to take along independent witnesses to support recovery if and when made. It has come in the evidence of ASI Jangir Singh that after the recovery had been effected, some people had passed by. Even so, obtaining their counter-signatures on the documents already prepared would not have lent any further credence to the prosecution version.”

In similar circumstances, it was laid down by this Court in Chet Ram Vs State Criminal Appeal no. 151/2006 decided on 25.7.2018 that when the accused was apprehended after he tried to flee on seeing the police, there was no necessity to associate any person from the nearby village. It was observed:-

“(A)appellant was intercepted, and search of his bag was conducted on suspicion, when he turned back and tried to flee, on seeing the police. Police officials did not have any prior information, nor did they have any reason to believe that he was carrying any contraband. They overpowered him when he tried to run away and suspected that he might be carrying some contraband in his bag. Therefore, the bag was searched, and Charas was recovered. After the recovery of Charas, there was hardly any need to associate any person from the nearby village because there remained nothing to be witnessed.

It is by now well settled that non-association of independent witnesses or non-supporting of the prosecution version by independent witnesses where they are associated, by itself, is not a ground to acquit an accused. It is also well-settled that the testimony of official witnesses, including police officials, carries the same evidentiary value as the testimony of any other person. The only difference is that Courts have to be more circumspect while appreciating the evidence of official witnesses to rule out the possibility of false implication of the accused, especially when such a plea is specifically raised by the defence. Therefore, while scrutinising the evidence of official witnesses, in a case where independent witnesses are not associated, contradictions and inconsistencies in the testimony of such witnesses are required to be taken into account and given due weightage unless satisfactorily explained. Of course, it is only the material contradictions and not the trivial ones, which assume significance.” (Emphasis supplied)

It was laid down by the Hon’ble Supreme Court of India in Raveen Kumar v. State of H.P., (2021) 12 SCC 557 : (2023) 2 SCC (Cri) 230: 2020 SCC OnLine SC 869 that non-association of the independent witnesses will not be fatal to the prosecution case. However, the Court will have to scrutinise the statements of prosecution witnesses carefully. It was observed a page 566:

“(C) Need for independent witnesses

It would be gainsaid that the lack of independent wit-nesses is not fatal to the prosecution case. [Kalpnath Rai v. State, (1997) 8 SCC 732: 1998 SCC (Cri) 134: AIR 1998 SC 201, para 9] However, such omissions cast an added duty on courts to adopt a greater degree of care while scrutinising the testimonies of the police officers, which if found reliable can form the basis of a successful conviction.”

This position was reiterated in Rizwan Khan v. State of Chhattisgarh, (2020) 9 SCC 627: 2020 SCC OnLine SC 730, wherein it was observed at page 633:

“12. It is settled law that the testimony of the official wit-nesses cannot be rejected on the ground of non-corroboration by independent witnesses. As observed and held by this Court in a catena of decisions, examination of independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case [see Pardeep Kumar [State of H.P. v. Pardeep Kumar, (2018) 13 SCC 808 : (2019) 1 SCC (Cri) 420] ].

In the recent decision in Surinder Kumar v. State of Pun-jab [Surinder Kumar v. State of Punjab, (2020) 2 SCC 563 : (2020) 1 SCC (Cri) 767], while considering somewhat similar submission of non-examination of independent witnesses, while dealing with the offence under the NDPS Act, in paras 15 and 16, this Court observed and held as under : (SCC p. 568)

“15. The judgment in Jarnail Singh v. State of Pun-jab [Jarnail Singh v. State of Punjab, (2011) 3 SCC 521 : (2011) 1 SCC (Cri) 1191], relied on by the counsel for the respondent State also supports the case of the prosecu-tion. In the aforesaid judgment, this Court has held that merely because the prosecution did not examine any independent witness would not necessarily lead to a conclusion that the accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved merely on account of their official status.

In State (NCT of Delhi) v. Sunil [State (NCT of Delhi) v. Sunil, (2001) 1 SCC 652: 2001 SCC (Cri) 248], it was held as under : (SCC p. 655)

‘It is an archaic notion that actions of the police of-ficer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the pre-sumption that the police records are untrust-worthy. As a proposition of law, the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature.’”

Similar is the judgment of this Court in Balwinder Singh &Anr. Vs State of H.P., 2020 Criminal L.J. 1684, wherein it was held:-

“3. (iii) Learned defence counsel contended that in the instant case, no independent witness was associated by the Investigating Officer; therefore, the prosecution case cannot be said to have been proved by it in accordance with provisions of the Act. Learned defence counsel, in support of his contention, relied upon titled Krishan Chand versus State of H.P.,2017 4 CriCC 531

3(iii)(d). It is by now well settled that prosecution case cannot be disbelieved only because the independent witnesses were not associated.”

This position was reiterated in Kallu Khan v. State of Rajasthan, (2021) 19 SCC 197: 2021 SCC OnLine SC 1223, wherein it was held at page 204: -

“17. The issue raised regarding conviction solely relying upon the testimony of police witnesses, without procuring any independent witness, recorded by the two courts, has also been dealt with by this Court in Surinder Kumar [Surinder Kumar v. State of Punjab, (2020) 2 SCC 563 : (2020) 1 SCC (Cri) 767] holding that merely because independent witnesses were not examined, the conclusion could not be drawn that the accused was falsely implicated. Therefore, the said issue is also well settled and in particular, looking at the facts of the present case, when the conduct of the accused was found suspicious, and a chance recovery from the vehicle used by him is made from a public place and proved beyond a reason-able doubt, the appellant cannot avail any benefit on this is-sue. In our view, the concurrent findings of the courts do not call for interference..”

A similar view was taken in Kehar Singh v. State of H.P., 2024 SCC OnLine HP 2825, wherein it was observed:

As regards non-association of the independent witnesses, it is now well settled that non-association of the independent witnesses or non-supporting of the prosecution version by independent witnesses itself is not a ground for acquittal of Appellants/accused. It is also well-settled that the testimonies of the official witnesses, including police officials, carry the same evidentiary value as the testimony of any other person. The only difference is that the Court has to be most circumspect while appreciating the evidence of the official witnesses to rule out the possibility of false implication of the accused, especially when such a plea is specifically raised by the defence. Therefore, while scrutinising the evidence of the official witnesses, in cases where independent witnesses are not associated, contradictions and inconsistencies in the testimonies of such witnesses are required to be taken into account and given due weightage unless satisfactorily explained. However, the contradiction must be material and not trivial one, that alone would assume significance.

Evidently, this is a case of chance recovery; therefore, the police party was under no obligation to join independent witnesses while going on patrolling duty, and the association of any person after effecting the recovery would be meaningless.

Xxxx

A similar reiteration of law can be found in the judgment rendered by the learned Single Judge of this Court in Avtar @ Tarri v. State of H.P., (2022) Supreme HP 345, wherein it was observed as under: —

“24. As regards the second leg of the argument raised by learned counsel for the appellant, it cannot be said to be of much relevance in the given facts of the case. The fact situation was that the police party had laid the ‘nakka’ and immediately thereafter had spotted the appellant at some distance, who got perplexed and started walking back. The conduct of the appellant was sufficient to raise suspicion in the minds of police officials. At that stage, had the appellant not been apprehended immediately, police could have lost the opportunity to recover the contraband. Looking from another angle, the relevance of independent witnesses could be there when such witnesses were immediately available or had already been associated at the place of ‘nakka’. These, however, are not mandatory conditions and will always depend on the fact situation of each and every case. The reason is that once the person is apprehended and is with the police, a subsequent association of independent witnesses may not be of much help. In such events, the manipulation, if any, cannot be ruled out.”

Xxxx

A similar reiteration of law can be found in a very recent judgment of the Coordinate Bench of this Court in Cr. A. No.202 of 2020, titled Dillo Begum v. State of H.P., decided on 27.03.2024.”

Thus, in view of the binding precedents of this Court and Hon’ble Supreme Court, the non-association of independent witnesses is not fatal, and the prosecution case cannot be discarded due to the non-association of independent witnesses. However, the Court will have to carefully scrutinise the testimonies of the police officials.

The police officials supported the prosecution case in their examination-in-chief. HC. Kesar Singh (PW-10) stated in his cross-examination that all the proceedings were conducted on the spot outside the vehicle with the help of a torchlight. All the officials were outside the vehicle. LHC Murlidhar (PW-11) stated that the accused was sitting in the vehicle, and he was with the accused inside the vehicle. ASI Nand Lal (PW-13) and HC Kesdar (PW-10) were outside the vehicle. ASI Nand Lal (PW-13) stated that no official was present inside the vehicle throughout the entire proceedings. It was submitted that this is a major contradiction and sufficient to discard the prosecution case; however, this submission is not acceptable. The incident took place on 13.08.2017, and the witnesses testified in March and June 2022 after a lapse of nearly five (5) years. The contradictions were bound to come with time due to failure of memory;hence, the contradiction of the position of the police officials is not sufficient to affect the core of the prosecution case, namely, ‘the recovery’.

The witnesses have deposed consistently. There is no other contradiction in their testimonies. Thus, the learned Trial Court had rightly relied upon the testimonies of the prosecution witnesses.

In the present case, the case property was not produced before the Court. HC Kesar (PW-10), LHC Murlidhar (PW-11) and ASI Nand Lal (PW13) stated that the case property was destroyed and the Destruction Certificate (Ext. PA) was produced before the Court; however, no order for the destruction of the case property was produced before the Court.

The Central Government issued a notification under Section 52-A of the NDPS Act for the disposal of seized narcotic drugs vide GSR 38 (E) dated 16.01.2015. Para -3 of the notification provides that an officer-in-charge of a Police Station or any officer empowered under Section 53 of the NDPS Act shall initiate action for disposal of narcotic drugs. Para 4 provides the manner of disposal. Para5 deals with the Drug Disposal Committee, and Para 7 deals with the procedure to be followed by the Drug Disposal Committee regarding the disposal of seized items. It provides that the Committee shall examine the list to satisfy itself that the requirement of Section 52-A of the NDPS Act has been complied with. They shall endorse the necessary certificate, examine and verify the weight and other details and record its findings in each case.

In the present case, no such record was produced before the Court. In Jitendra v. State of M.P., (2004) 10 SCC 562: 2004 SCC (Cri) 2028: 2003 SCC OnLine SC 1038,the independent witnesses turned hostile, and the case property was not produced. It was held that the conviction of the accused could not be sustained. It was observed:

“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 cross-examination 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 noticed that the investigating officer was also not examined. Against this background, to say that, despite the panch witnesses having turned hostile, the non-examination of the investigating officer and the non-production of the seized drugs, the conviction under the NDPS Act can still be sustained, is far-fetched.”

It was held in Noor Aga v. State of Punjab, (2008) 16 SCC 417: (2010) 3 SCC (Cri) 748: 2008 SCC OnLine SC 1026 that the case property can be destroyed as per the order of the competent Magistrate and the non-production of the case property will create a serious dent in the prosecution case. It was observed:

“92. Omission on the part of the prosecution to produce evidence in this behalf must be linked with a second important piece of physical evidence that the bulk quantity of heroin allegedly recovered indisputably has also not been produced in court. The respondents contended that the same had been destroyed. However, on what authority it was done is not clear. The law requires that such an authority must flow from an order passed by the Magistrate. Such an order whereupon reliance has been placed is Exhibit PJ; on a bare perusal whereof, it is apparent that at no point of time had any prayer been made for the destruction of the said goods or disposal thereof otherwise. What was necessary was a certificate envisaged under Section 110(1-B) of the 1962 Act. An order was required to be passed under the aforementioned provision providing for authentication, inventory, etc. The same does not contain within its mandate any direction as regards destruction.

The only course of action the prosecution should have resorted to is to obtain an order from the competent court of the Magistrate as envisaged under Section 52-A of the Act in terms whereof the officer empowered under Section 53 upon preparation of an inventory of narcotic drugs containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as he may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings thereunder make an application for any or all of the following purposes:

“(a) Certifying correctness of the inventory so prepared; or

(b) Taking, in the presence of such Magistrate, photographs of substances and certifying such photographs as true or

(c) Allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.”

Sub-section (3) of Section 52-A of the Act provides that as and when such an application is made, the Magistrate may, as soon as may be, allow the application. The reason wherefore such a provision is made would be evident from sub-section (4) of Section 52-A, which reads as follows:

“52-A. Disposal of seized narcotic drugs and psychotropic substances.—***

(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.”

Concededly, neither was any such application filed nor was any such order passed. Even no notice has been given to the accused before such alleged destruction.

We must also notice a distinction between Section 110(1-B) of the 1962 Act and Section 52-A(2) of the Act as sub-section (4) thereof, namely, that the former does not contain any provision like sub-section (4) of Section 52-A. It is of some importance to notice that Para 3.9 of the Standing Order requires pre-trial disposal of drugs to be obtained in terms of Section 52-A of the Act. Exhibit PJ can be treated as nothing other than an order of authentication as it is a certificate under Section 110(1-B) of the 1962 Act, as the aspect of disposal clearly provided for under Section 52-A of the Act is not alluded to. The High Court, in its judgment, purported to have relied upon an assertion made by the prosecution with regard to the prevalence of a purported general practice adopted by the Customs Department to obtain a certificate in terms of the said provision prior to the destruction of case property, stating:

“To a specific query put to Mr Guglani by the Court with regard to the aforesaid arguments, he fairly states that the general practice adopted by the Customs Department is that before destroying the case property, a certificate is obtained under Section 110(1-B) of the Customs Act. He states that in this regard, a sample as per the provisions contained in sub-clause (c) to clause (1-B) is also drawn for the purposes of certification of correctness so that at a later stage, the identity of the case property is not disputed.

Maybe, in my view, some irregularities were committed in this case by the Customs Department while obtaining the order, Exhibit PJ from the court for the reason that if the case property was to be destroyed, at least a notice should have been given to the accused on the application moved under Section 110(1-B) of the Customs Act or at least a specific request in this regard should have been made in the application, but at the same time, the aforesaid irregularity cannot be said to be a vital flaw in the case of the prosecution from which the appellant can derive any benefit, especially under the circumstances when confessional statements made by the appellant are held to be made voluntarily as observed by me hereinabove….

Similarly, non-production of cardboard cartons is also not fatal to the prosecution.”

The question which arises for our consideration is as to whether it is permissible to do so. Evidently, it is not. Firstly, because taking recourse to the purported general practice adopted by the Customs Department is not envisaged in regard to prosecution under the Act. Secondly, no such general practice has been spoken of by any witness. A statement made at the Bar as regards the existence of such a purported general practice, to say the least, cannot be a substitute of evidence whereupon only the court could rely. Thirdly, the High Court failed to take into consideration that a certificate issued under Section 110(1-B) of the 1962 Act can be recorded as a certificate of authentication and no more; authority for disposal would require a clear direction of the court in terms of Section 52-A of the Act. Fourthly, the High Court failed and/or neglected to consider that physical evidence, being the property of the court and being central to the trial, must be treated and disposed of in strict compliance with the law.

The High Court proceeded on the basis that the non-production of physical evidence is not fatal to the prosecution case, but the fact remains that a cumulative view with respect to the discrepancies in physical evidence creates an overarching inference which dents the credibility of the prosecution. Even for the said purpose, the retracted confession on the part of the accused could not have been taken recourse to.”

It was held in Ashok v. State of M.P., (2011) 5 SCC 123: (2011) 2 SCC (Cri) 547: 2011 SCC OnLine SC 570 that in the event of non-production of the case property before the Court, the report of the Forensic Analysis cannot be connected to the case. It was observed:

“12. Last but not 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.”

It was held in Vijay Jain v. State of M.P., (2013) 14 SCC 527: (2014) 4 SCC (Cri) 276: 2013 SCC OnLine SC 500 that non-production of the case property will not establish the seizure from the accused. It was observed:

“10. On the other hand, on a reading of this Court's judgment in Jitendra case [Jitendra v. State of M.P., (2004) 10 SCC 562: 2004 SCC (Cri) 2028], we find that this Court has taken the 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 [Ashok v. State of M.P., (2011) 5 SCC 123:(2011) 2 SCC (Cri) 547] this Court found that the alleged narcotic powder seized from the possession of the accused was not produced before the trial court as a 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.

Xxxx

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 non-production 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.

It was held in Gorakh Nath Prasad v. State of Bihar, (2018) 2 SCC 305: (2018) 1 SCC (Cri) 711: 2017 SCC OnLine SC 1505 that where the independent witnesses had not supported the prosecution case, and the case property was not produced before the court, the prosecution case was not proved. It was observed:

“6. In the facts of the present case, the independent witnesses with regard to the search and seizure, PW 2 and PW 3, having turned hostile, deposing that their signatures were obtained on blank paper at the police station, the mere fact of an FSL Report (Ext. 8), being available is no confirmation either of the seizure or that what was seized was ganja, in the absence of the production of the seized item in court as an exhibit. The non-production of the seized material is therefore considered fatal to the prosecution case. The issue whether there has been compliance with Sections 42 and 50 of the NDPS Act loses its relevance in the facts of the case.

The remaining prosecution witnesses being police officers only, it will not be safe to rely upon their testimony alone, which in any event cannot be sufficient evidence by itself either with regard to recovery or the seized material being ganja. No explanation has also been furnished by the prosecution for the non-production of the ganja as an exhibit in the trial. The benefit of the doubt will, therefore, have to be given to the appellant and in support of which learned Senior Counsel Shri Rai has relied upon Jitendra v. State of M.P. [Jitendra v. State of M.P., (2004) 10 SCC 562: 2004 SCC (Cri) 2028] and reiterated in Ashok v. State of M.P. [Ashok v. State of M.P., (2011) 5 SCC 123: (2011) 2 SCC (Cri) 547] as follows: (SCC pp. 126-27, paras 12-13)

“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.

It may be noted here that in Jitendra v. State of M.P. [Jitendra v. State of M.P., (2004) 10 SCC 562: 2004 SCC (Cri) 2028], on similar facts, this Court held that the material placed on record by the prosecution did not bring home the charge against the accused beyond reasonable doubt and it would be unsafe to maintain their conviction on that basis. In Jitendra [Jitendra v. State of M.P., (2004) 10 SCC 562: 2004 SCC (Cri) 2028], the Court observed and held as under: (SCC pp. 564-65, paras 5-6)

‘5. The evidence to prove that charas and ganja were recovered from the possession of the 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 (PW 7), Angad Singh (PW 8) and Sub-Inspector D.J. Rai (PW 6), there is no independent witness as to the recovery of the drugs from the possession of the 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 them with the samples sent to the forensic science laboratory. There is no material produced in the trial, apart from the interested testimony of the 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. …

… 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.”

It was held in Union of India v. Jarooparam, (2018) 4 SCC 334: (2018) 2 SCC (Cri) 465: 2018 SCC OnLine SC 204 that where no application for the destruction of the case property was filed, and the case property was not produced before the court, the prosecution case cannot be relied upon. It was observed:

“9. From the above proceedings, it is crystal clear that the remaining seized stuff was not disposed of by the Executive Magistrate. The contraband stuff, as well as the samples sealed as usual, were handed over physically to the Investigating Officer Harvinder Singh (PW 6). Also, the trial court, in its judgment, specifically passed instructions to preserve the seized property and record of the case in safe custody, as the co-accused Bhanwarlal was absconding. The trial court more specifically instructed to put a note with red ink on the front page of the record for its safe custody. In such a situation, it assumes important that there was nothing on record to show as to what happened to the remaining bulk quantity of contraband. The absence of a proper explanation from the prosecution significantly undermines its case and reduces the evidentiary value of the statements made by the witnesses.

Omission on the part of the prosecution to produce the bulk quantity of seized opium would create doubt in the mind of the Court on the genuineness of the samples drawn and marked as A, B, C, D, E, F from the allegedly seized contraband. However, the simple argument that the same had been destroyed cannot be accepted as it is not clear that on what authority it was done. The law requires that such an authority must flow from an order passed by the Magistrate. On a bare perusal of the record, it is apparent that at no point in time any prayer had been made by the prosecution for the destruction of the said opium or disposal thereof otherwise. The only course of action the prosecution should have resorted to for its disposal is to obtain an order from the competent court of Magistrate as envisaged under Section 52-A of the Act. It is explicitly made under the Act that as and when such an application is made, the Magistrate may, as soon as may be, allow the application (see also Noor Aga v. State of Punjab [Noor Aga v. State of Punjab, (2008) 16 SCC 417: (2010) 3 SCC (Cri) 748] ).

There is no denial of the fact that the prosecution has not filed any such application for disposal/destruction of the allegedly seized bulk quantity of contraband material, nor was any such order passed by the Magistrate. Even no notice has been given to the accused before such alleged destruction/disposal. It is also pertinent here to mention that the trial court appears to have believed the prosecution story in haste and awarded conviction to the respondent without warranting the production of a bulk quantity of contraband. But, the High Court committed no error in dealing with this aspect of the case and disbelieving the prosecution story by arriving at the conclusion that at the trial, the bulk quantities of contraband were not exhibited to the witnesses at the time of adducing evidence.”

This position was reiterated in Mangilal v. State of M.P.,2023 SCC OnLine SC 862, wherein it was observed:

“8. Before any proposed disposal/destruction mandate of Section 52A of the NPDS Act is required to be duly complied with, starting with an application to that effect. A Court should be satisfied with such compliance while deciding the case. The onus is entirely on the prosecution in a given case to satisfy the Court when such an issue arises for consideration. Production of seized material is a factor to establish seizure followed by recovery. One has to remember that the provisions of the NDPS Act are both stringent and rigorous, and therefore, the burden heavily lies on the prosecution. Non-production of physical evidence would lead to a negative inference within the meaning of Section 114(g) of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act). The procedure contemplated through the notification has an element of fair play, such as the deposit of the seal, numbering the containers seriatim wise and keeping them in lots preceded by compliance with the procedure for drawing samples….

Xxxxx

The record would also indicate that an order was passed by the trial Judge permitting the prosecution to keep the seized materials within the police station, to be produced at a later point in time. This itself is a sufficient indication that the mandate of Section 52A has not been followed. There is no explanation either for the non-production of the seized materials or the manner in which they are disposed of. No order passed by the Magistrate allowing the application, if any, filed under Section 52A of the NDPS Act. P.W.10, Executive Magistrate, has deposed to the fact that he did not pass any order for the disposal of the narcotics substance allegedly seized. Similarly, P.W.12, who is in charge of Malkhana, also did not remember any such order having been passed. On the issue of disposing of narcotic substances in derogation of the compliance contained in Section 52A of the NDPS Act”

In the present case, the In-charge of the Police Station has not stated that he had filed any application for the destruction of the case property. No record of the compliance of the procedure was filed; therefore, it cannot be said that the prosecution had a valid reason for the non-production of the case property before the Court.

The prosecution has examined ASI Nand Lal (PW-13) and produced two sealed parcels (Ext.P-1 and Ext.P-2). The order passed by the learned Magistrate was not exhibited but is available on record and shows that two (2) samples of twenty-six (26) grams each were taken in his presence. Therefore, the prosecution case can, at best, be accepted regarding the possession of 52 grams of charas contained in the samples, which is punishable under Section 20(b) (ii)(A) of the NDPS Act.

In view of the above, the present appeal is partly allowed, judgment and order passed by the learned Trial Court are modified, the accused is convicted for the commission of an offence punishable under Section 20(b) (ii)(A) of the NDPS Act, and is sentenced to undergo rigorous imprisonment for one year, pay a fine of ₹5000/- and default of payment of fine to undergo further rigorous imprisonment for one month. He will be entitled to set off for the period spent by him as an undertrial prisoner. The modified warrant of sentence be issued.

The record of the learned Trial Court be returned with a copy of this order for the information of the learned Trial Court.

Appeal stands disposed of alongwith pending miscellaneous application(s), if any.