Raju @ Jitendra vs State of Madhya Pradesh

Hon''ble Shri Justice M.C. Garg, J.—This appeal arises out of the judgment dated 11.09.2008 passed by the Special Judge, Mandsaur in S.T. No. 18/2004, wherein the appellant has been convicted for offence u/s 8/21(C) of the N.D.P.S. Act and sentenced to undergo R.I. for 10 years with fine of Rs. 1,00,000/- and in default of payment of fine to further undergo R.I. for one year. In short the case of the prosecution reads as under:-

After personal search of Raju and from the truck also, three packets containing 12 Kg of brown sugar was seized, each packet containing 4Kg of brown sugar. After obtaining the report from FSL and recording the evidence of prosecution witness, the Special Judge held the appellant guilty of the commission of offence u/s 18/21(c) of the N.D.P.S. Act and sentenced him as above.

It is against this judgment, the present appeal has been filed. According to the learned counsel for the appellant, the appellant has been in judicial custody for about 8 years out of the sentence awarded to him for 10 years. It is submitted that the conviction of the appellant is unsustainable for the reason that seized material was not produced before the Court as per requirement of Section 52-A of the Act. Thus, there was a violation of the said provision which is mandatory in nature.

Reference has been made to para 11 of the impugned judgment which reads as under:-

It is submitted that except that seized samples, the remaining material has not been produced on record. Learned counsel for the appellant submits that in view of the non-production of the seized material except for the samples drawn, there is violation of Section 52-A of the Act. The effect of such violation is that the conviction of the appellant cannot be sustained. Reference has been made to a judgment of this Court in the case of Laxminarayan Vs. State of M.P. 2009 Cr.L.R. (M.P.) 667. Paragraphs 26 to 29 are relevant which are reproduced hereunder:-

From the observations made by the Supreme Court, it appears that notice of an application u/s 52-A of the Act is required to be made. It is also to be seen from the judgment in Noor Agra(Supra) that the physical evidence relating to three samples taken from the bulk amount of heroin were also not produced in the Court. The Supreme Court observed that if the argument that the bulk quantity was destroyed is accepted, the samples were essential for production as primary evidenced for the purpose of establishing the fact of recovery of heroin as envisaged u/s 52-A of the Act. In the present matter, neither the bulk quantity has been produced in the Court nor the samples which were drawn (A3 and A4) were produced before the Court.

It would be trite to say that when the personal liberty of a man is at stake then the mandatory provisions of law take sacrosanct nature and their observation become mandatory. It at any time it is held that the provisions are mandatory in nature then the Court would find no hesitation in acquitting the accused if it finds that the provisions of mandatory nature have been violated.

From the above referred judgment of the Supreme Court and the language of Section 52-A of the Act, it clearly appears that the prosecution agency is entitled to destruct/destroy the particular contraband bulk quantity so seized from the accused but the fact is required to be proved. If it is not proved in the Court that the bulk quantity was destroyed then the prosecution would be obliged to produce the bulk quantity or in case the prosecution successfully proves that the seized bulk quantity was destroyed then the prosecution would be obliged to produce the additional samples drawn from the bulk quantity before its destruction.

In the present matter, the prosecution has failed in producing the articles, which were seized from the possession of the accused persons; they have also failed in producing the additional samples drawn in presence of the Executive Magistrate-cum-Tehsildar; they have also failed in proving the contents of the application filed u/s 52-A of the Act.

It is observed here that there is no evidence available on record that the seized material was destroyed and it was for that reason that it was not produced.

To the same effect is the judgment delivered by Hon''ble Supreme Court in the case of Noor Agra Vs. State of Punjab and another 2008 Cr.L.R.(SC) 655. Relevant paragraph is reproduced hereunder:-

Physical evidence of a case of this nature being the property of the Court should have been treated to be sacrosanct. Non-production thereof would warrant drawing of a negative inference within the meaning of Section 114(g) of the Evidence Act. While there are such a large number of discrepancies, if a cumulative effect thereto is taken into consideration on the basis whereof the permissive inference would be that serious doubts are created with respect of the prosecution''s endeavour to prove the fact of possession of contraband from the appellant.

Learned counsel for the appellant submits that in this case, no evidence has been placed on record that goods were destroyed under the orders of the Court. No certificate of such destruction has been placed on record. It is submitted that provision of Section 52-A of the Act being mandatory, requires the conviction of the appellant to be set aside.

Learned counsel for the respondent is not in a position to justify as to why the material was not produced before the Court. In view of the aforesaid, the conviction of the appellant is set aside. In case he is not wanted in any other case, he be released on bail.

C.C. as per rules.