Mohinder Singh vs The State Of Punjab

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2182 OF 2010

MOHINDER SINGH ...Appellant

Versus

THE STATE OF PUNJAB ...Respondent

JUDGMENT

R. BANUMATHI, J.

This appeal arises out of the judgment dated 30.06.2010

passed by the High Court of Punjab and Haryana at Chandigarh in

Criminal Appeal No.199-DBA of 2002 in and by which the High

Court reversed the judgment of acquittal of the appellant/accused

and convicted 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, Signature Not Verified Digitally signed by MADHU BALA Joginder Singh, SI, Police Station Sadar Ludhiana (PW-2) along Date: 2018.08.14 17:01:50 IST Reason:

with other police officials was checking the vehicles on the bridge of

1 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 Magistrate. Joginder Singh (PW-2) called

Gurjit Singh, DSP (PW-4) and the bag carried by the

appellant/accused was searched in his presence and the substance

bag was found to be “opium”. On weighment, it was found to be 7

kilos and 40 gms. Two samples from the recovered “opium”, each

weighing 20 gms were taken and sealed separately having

monogram ‘JS’ and ‘GS’ and taken into possession vide recovery

memo Ext.-PE. Case property along with two samples was

deposited with Baldev Singh MHC (PW-5). Next day i.e. on

01.05.1998, the case property as well as the sample parcels were

produced before the Area Magistrate who is said to have initialled

the case property and the sample parcels. The sample parcels

were sent to Forensic Science Laboratory (FSL) and subjected to

chemical analysis and the contents were found to be “opium” in FSL

report vide Ext.-P1. After completion of the investigation, charge

sheet was filed against appellant under Section 18 of the NDPS Act.

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3. To prove the guilt of the accused, the prosecution has

examined Constable Hardev Singh (PW-1), SI Joginder Singh

(PW-2), ASI Harbhajan Singh (PW-3), DSP Gurjit Singh (PW-4) and

Baldev Singh, MHC (PW-5). The appellant was examined under

Section 313 Cr.P.C. to explain the incriminating evidence

circumstance appearing in the prosecution evidence and he denied

all of them.

4. The trial court acquitted the appellant inter alia on the ground

that there was non-compliance of Section 50 of the NDPS Act. The

trial court further held 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 Joginder

3 Singh (PW-2) and Harbhajan Singh (PW-3), the High Court held

that the case property parcels of the samples and the samples

having the seals of ‘JS’ and ‘GS’ were duly produced before the

Magistrate and on those findings, the High Court reversed the order

of acquittal and convicted the appellant under Section 18 of the

NDPS Act and sentenced him to undergo ten years imprisonment.

Being aggrieved, the appellant/accused has preferred this appeal.

6. Mr. Harkesh Singh, learned counsel for the appellant inter-alia

submitted that since the contraband alleged to have been seized

from the accused was not produced before the trial court, conviction

of the appellant cannot be sustained. Learned counsel for the

appellant placed reliance upon Ashok alias Dangra Jaiswal v.

State of Madhya Pradesh (2011) 5 SCC 123 to contend that where

the narcotic drug or the psychotropic substance seized from the

possession of the accused is not produced before the Magistrate

and when there is no evidence to connect the forensic science

report with the drug or the substance that was seized from the

possession of the accused in such a case the conviction of the

appellant/accused is not sustainable.

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7. Learned counsel for the State has submitted that from the oral

evidence of SI Joginder Singh (PW-2) and ASI Harbhajan Singh

(PW-3), the production of the contraband seized from the accused

before the court has been proved by the prosecution. It was

submitted that the evidence and materials on record amply 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 contraband-about

seven Kilos of “opium” in the bag which he was carrying in the

scooter. Carrying the contraband in the scooter/bag cannot be said 5 to be ‘by the person’ necessitating compliance of Section 50 of the

NDPS Act for personal search. Reference in this regard can be

made to the decision in State of H.P. v. Pawan Kumar (2005) 4

SCC 350.

10. So far as the contention regarding production of the

contraband seized from the accused, in his evidence, Harbhajan

Singh (PW-3) stated that on 01.05.1998, he produced the sample

parcels and the case property parcels with the seal and the sample

seals before the Judicial Magistrate, Ludhiana and the Magistrate

has recorded the seals tallied with the specimen impression.

Harbhajan Singh (PW-3) further stated that after return of the

samples and the parcels from the court, the same were lodged by

him to the Malkhana on 01.05.1998 itself. Baldev Singh (PW-5) the

then Malkhana in charge though orally stated about the deposit of

the contraband in the Malkhana, but Baldev Singh (PW-5) has not

produced Register No.19 maintained in the Malkhana to show the

relevant entry in Register No.19 as to deposit of the case property in

the Malkhana. Oral evidence of Harbhajan Singh (PW-3) and

Baldev Singh (PW-5) as to the deposit of the contraband seized

from the accused with Malkhana is not corroborated by the

documentary evidence namely the entry in Register No.19.

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11. After referring to the oral evidence of Joginder Singh (PW-2)

and Harbhajan Singh (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 the quantity of the contraband

goods allegedly seized from the possession of the accused and the

best evidence would be the court records as to the production of the

contraband before the Magistrate and deposit of the same before

the Malkhana or the document showing destruction of the

contraband.

13. In Vijay Jain v. State of Madhya Pradesh (2013) 14 SCC

527, this Court reiterated the necessity of production of contraband

7 substances seized from the accused before the trial court to

establish that the contraband substances seized from the accused

tallied with the samples sent to the FSL. It was held that mere oral

evidence to establish seizure of contraband substances from the

accused is not sufficient. It was held as under:-

“10. On the other hand, on a reading of this Court’s judgment in Jitendra v. State of M.P. (2004) 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 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 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.”

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 possession of the

case records recorded a finding that there is no order of the

Magistrate showing the production of the contraband before the

8 court and acquitted the accused on that basis, in our view, the High

Court ought not to have interfered with the said order of acquittal.

15. In an appeal against acquittal, the High Court will not interfere

unless there are substantial and compelling reasons to reverse the

order of acquittal. The mere fact that on reappreciation of evidence

the appellate court is inclined to arrive at a conclusion which is at

variance with the trial court, the same cannot be the reason for

interference with the order of acquittal. After referring to various

judgments in Chandrappa and others v. State of Karnataka

(2007) 4 SCC 415, this Court summarised the general principles

regarding the powers of the appellate court while dealing with an

appeal against the order of acquittal and held as under:-

“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (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.

9 (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 principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”

The same principles were reiterated in number of judgments viz.

Jugendra Singh v. State of Uttar Pradesh (2012) 6 SCC 297,

State of Uttar Pradesh v. Ram Sajivan and Others (2010) 1 SCC

529, Bhaskar Ramappa Madar and others v. State of Karnataka

(2009) 11 SCC 690, Chandrappa and others v. State of

Karnataka (2007) 4 SCC 415 and other judgments.

16. Considering the case in hand, the findings of the trial court

cannot be said to be ‘distorted conclusions’ warranting interference.

Based on the oral evidence of Joginder Singh (PW-2) and

Harbhajan Singh (PW-3), the High Court ought not to have

interfered with the order of acquittal and the conviction of the

appellant under Section 18 of the NDPS Act cannot be sustained.

17. In the result, the conviction of the appellant under Section 18

of the NDPS Act and the sentence of imprisonment imposed on him

10 is set aside and this appeal is allowed and the appellant is acquitted

of the charge.

.…….…………...………J. [RANJAN GOGOI]

…………….……………J. [R. BANUMATHI]

…………….……………J. [NAVIN SINHA]

New Delhi;

August 14, 2018

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