Than Kunwar vs The State Of Haryana

CRIMINAL APPEAL NO. 2172 OF 2011 THAN KUNWAR ... APPELLANT

VERSUS

STATE OF HARYANA ... RESPONDENT

J U D G M E N T

K.M. JOSEPH, J.

1. The appellant was accused No. 1 before the Trial

Court and the appellant before the High Court, which,

by the impugned judgement, confirmed the judgment of

the Trial Court and convicted her under Section 18 of

the Narcotics Drugs and Psychotropic Substances Act,

1985 (NDPS Act).

2. The prosecution case, briefly put, is as follows:

On 10.04.2004, ASI-PW7 and other police

officials noticed the appellant and another

Signature Not Verified accused approaching from 8, Marla Colony Digitally signed by ASHA SUNDRIYAL Date: 2020.03.02 16:21:38 IST Reason: carrying a bag in their hands. On seeing the

1 police party, the accused allegedly turned back

and started walking briskly. This aroused

suspicion in the mind of the ASI. He intercepted

them. The bag was suspected to contain narcotic

items. The accused were informed that if they so

desired, they could have search of the bag in

the presence of a Gazetted Officer or

Magistrate. The appellant desired search by a

Gazetted Officer. The DSP came to the spot. On

his directions, the search was carried out. The

bag contained on weighment 6 kilograms 300 grams

of opium. Samples were taken. Thereafter, the

formal FIR was registered. On receipt of the FSL

report and completing investigation, the charge-

sheet was filed. Prosecution examined 8

witnesses. The appellant denied incriminating

circumstances, in the questioning held under

Section 313 of the Code of Criminal Procedure.

As noticed earlier, the High Court has affirmed

the appellant’s conviction.

3. We have heard learned Counsel for the appellant.

2 THE CONTENTIONS OF THE APPELLANT

4. It is firstly pointed out that Shri Om Parkash,

DSP - Gazetted Officer, (in whose presence, the

search was alleged by the prosecution was conducted)

was present at the same time in respect of another

case. In other words, he would submit that in

connection with this case in his testimony, he has

stated that he reached the spot at about 01:30 P.M.

There is evidence that he remained there till about

03:00 P.M. However, this is refuted with reference to

his testimony which has been produced in the Court,

tending to show that he was present from 12:30 P.M.

on the very same date in connection with another case

and he remained there till 02:30 P.M. The question

is, therefore, as to how the same person under whose

gaze, the search was allegedly carried out, could be

present at two different places at the same time.

This brought under a cloud, the entire prosecution

case runs the argument. Next, it is contended that

the contraband, allegedly 6 kilograms 300 grams, was

not produced before the Court. This vitiated the

3 conviction. In this regard, reliance was placed on

the following judgments of this Court:

(1) Jitendra and another v. State of M.P.1;

(2) Ashok alias Dangra Jaiswal v. State of Madhya

Pradesh2; and

(3) Gorakh Nath Prasad v. State of Bihar3.

5. No doubt, learned Counsel also draws our

attention to the judgment of this Court in State of

Rajasthan v. Sahi Ram4, where a contra view is

essentially taken based on the fact that if a large

quantity of contraband is involved, it may not be

necessary to produce.

6. The next contention urged by learned Counsel for

the appellant is that, though, it may be true that

for searching the bag carried out by the accused, it

may not be necessary to comply with the requirements

of Section 50 of the Act but if there is also a

personal search, Section 50 is attracted. In this

context, he drew our attention to the judgment of 1 (2004) 10 SCC 562 2 (2011) 5 SCC 123 3 (2018) 2 SCC 305 4 (2019) 10 SCC 649

4 Bench of two learned Judges reported in Dilip and

another v. State of M.P.5. Therein, it is, inter alia,

stated as follows:

“16. In this case, the provisions of Section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the person of the appellants was also searched, it was obligatory on the part of PW 10 to comply with the said provisions. It was not done.”

7. In fact, when it was pointed out by learned

Counsel for the appellant that the aforesaid view has

been disapproved by a Bench of three learned Judges

in the decision in State of Punjab v. Baljinder Singh

and another6, he pointed out that, in fact, a Bench of

three learned Judges has come to rely on the decision

by the Bench of two learned Judges in the judgment in

SK. Raju alias Abdul Haque alias Jagga v. State of

West Bengal7.

8. The last contention by the learned Counsel for

the appellant is that the prosecution has not

associated any independent witness in support of its

5 (2007) 1 SCC 450 6 (2019) 10 SCC 473 7 (2018) 9 SCC 708

5 case. He points out by referring to the judgment

itself that there were witnesses available but still

no witnesses other than the official witnesses have

been enlisted in support of the prosecution case.

9. Per contra, learned Counsel for the State would

submit that the time of arrival of Sh. Om Parkash,

Gazetted Officer (DSP) has not been questioned. He

further pointed out that the Court must bear in mind

the lapse of time from the date of incident to the

time of examination of the witness. Discrepancy in

the timing should not be allowed to discredit the

testimony of the witness. Still further, he submits

that this is also a case where contraband articles

were recovered from within the bag carried by the

accused. For carrying out search of a bag as distinct

from the person of the accused, there is no

requirement to comply with Section 50. As regards,

the contention that the contraband articles were not

produced before the Court, it is submitted that it is

not the law that the contraband articles must be

produced. There is no provision in the Act which

mandates its production. Still further, he would

6 point out that the appellant has not raised this

complaint before the Trial court or the High Court.

There is no dispute raised by Counsel, in fact, that

the contraband article, as such, is not produced.

However, he pointed out that there is the FSL report.

He supports the judgment of the High Court in regard

to the non-production of any independent witness.

10. First question which falls for our consideration

is whether there is merit in the contention of the

appellant that no independent witness is produced. In

this regard, the testimony of PW-6 is relied upon. In

his cross-examination, he has, inter alia, stated as

follows:

It was a busy place; people were passing thereby. Some persons from the

public were called but they were reluctant but no action was taken. Resident of Kabri was asked to join the investigation. Sunil, Gulshan, were also do so. They were there at about 1:00 P.M. I did not know prem was Sarpanch or not of the village. They stopped for about 5 minutes at the spot. Some people were called from the

7 nearby shop but I do not know their names of the name of the shop.

11. It is, therefore, the case of the appellant, this

is not a case where independent witnesses could not

have been associated with the investigation and the

prosecution.

12. We will deal with this after we also consider

the other aspects. The next aspect which is

highlighted, as already noticed, was the discrepancy

brought out in the testimony of the Gazetted Officer,

viz., the DSP who was allegedly called in by the ASI

when upon being informed about the right under

Section 50, the accused demanded compliance of

Section 50 and on a telephone message, the DSP

arrived at the spot. In his deposition, it is true

that the Gazetted Officer (DSP) has deposed, inter

alia, as follows:

He received a telephone call on his

mobile phone from ASI. It was at about

01:10 P.M., he received the call. He

reached the spot at about 01:30 P.M.

8 The ASI examined as PW-7, has stated

that the accused was apprehended at about

01:00 P.M. and they remained at the spot

till 04:30 P.M. Notice under Section 50 of

the Act, was given at about 01:05 P.M..

Message to the DSP was sent telephonically

by about 01:05 P.M. He does not remember

from the name of the shop from which the

telephone call was made. The DSP/Gazetted

Officer was present in the office at that

time. The DSP came at about 01:20 P.M. He

remained at the spot till 03.00 P.M.

13. The case of the appellant is based on the

following testimony which was given by the very same,

DSP in another case, which has been marked in the

Trial Court. In the said case (viz., State v. Heera

Lal), he states, inter alia, as follows:

On 10.04.2004, he was posted as DSP

Head Quarters, Panipat. He was present in

his office at about 12 Noon. He deposed to

have received a telephone call from a

9 police officer that notice under Section 50

has been served and the person apprehended

in the said case opted to have a search

before a Gazetted Officer. He reached the

spot at Jattal Road, near railway crossing

at 8, Marla, Panipat. What is of relevance

is that, he stated in his cross-examination

that he remained at the spot upto 02:30

P.M. He reached the spot or place of

occurrence at about 12:20 PM. The distance

to the spot from his office was stated to

be 2.5 km.

14. Thus, on the one hand, in this case, the very

same officer has deposed that he reached the spot at

about 01:30 P.M. and the ASI has deposed that he

remained at the spot till 03:00 P.M. The DSP has

deposed in connection with another case that he

reached the spot of that investigation in connection

with that case at about 12:20 P.M. and remained there

till 02:30 P.M. The argument, therefore, is that from

the evidence, the DSP must be present at the same

10 time at two different places. This clearly rendered

prosecution case suspect and benefit of doubt should

at any rate must go to the accused.

15. As regards the contention of violation of

Section 50 it is based on their being personal search

of the accused. PW 6, the ASI has inter alia stated

as follows:

Personal search of accused was taken

by the lady constable under the shadow of

the jeep. I do not remember… I do not

remember the direction of the jeep under

which the personal search of the accused

was taken. The lady constable has alone

taken away the accused for personal

search…. I do not remember whether at the

time of personal search driver of the jeep

was in the jeep or not.

16. Learned Counsel for the appellant drew our

attention to the judgment of this Court in

Dilip (supra). Therein, a Bench of two learned

Judges held, inter alia, as follows: 11

"16. In this case, the provisions of Section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the person of the appellants was also searched, it was obligatory on the part of PW 10 to comply with the said provisions. It was not done.”

17. No doubt we notice the judgment of this Court

rendered by a Bench of three learned Judges in

SK. Raju (supra). Therein, the Court referred to the

judgment in Dilip (supra), and thereafter, went on

to, inter alia, hold as follows:

“As soon as the search of the person take place the requirement of mandatory compliance with Section 50 is attracted irrespective of whether contraband is recovered from the person of the detainee or not.”

18. In the said case, the Court went on to hold that

requirement of Section 50 was complied with. However,

we notice a later development in the form of a

judgment rendered by a Bench of three learned judges

touching upon the correctness of the view expressed in

12 Dilip (supra) as contained in paragraph 16 of the

judgment.

19. In Baljinder Singh (supra), this Court

elaborately considered the matter with reference to

the applicability of Section 50 in a case where there

is a personal search also.

20. This was the case where 7 bags of poppy husk each

weighing 34 kg. were found from the vehicle. A

personal search of the accused was undertaken after

their arrest which did not lead to any recovery of

contraband. The High Court found violation of Section

50 as the personal search of the accused was not

conducted before the Magistrate/Gazetted Officer and

set aside the conviction of the respondent. This

Court, in Baljinder Singh (supra), went on to consider

the law laid down by the Constitution Bench in Baldev

Singh (supra) and, inter alia, held as follows:

“16. The conclusion (3) as recorded by the Constitution Bench in para 57 of its judgment in Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172: 1999 SCC (Cri) 1080] clearly states that the conviction may not be based “only” on the basis of possession of an illicit

13 article recovered from personal search in violation of the requirements under Section 50 of the Act, but if there be other evidence on record, such material can certainly be looked into.

17. In the instant case, the personal search of the accused did not result in recovery of any contraband. Even if there was any such recovery, the same could not be relied upon for want of compliance of the requirements of Section 50 of the Act. But the search of the vehicle and recovery of contraband pursuant thereto having stood proved, merely because there was non-compliance of Section 50 of the Act as far as “personal search” was concerned, no benefit can be extended so as to invalidate the effect of recovery from the search of the vehicle. Any such idea would be directly in the teeth of conclusion (3) as aforesaid.

18. The decision of this Court in Dilip case [Dilip v. State of M.P., (2007) 1 SCC 450 : (2007) 1 SCC (Cri) 377] , however, has not adverted to the distinction as discussed hereinabove and proceeded to confer advantage upon the accused even in respect of recovery from the vehicle, on the ground that the requirements of Section 50 relating to personal search were not complied with. In our view, the decision of this Court in the said judgment in Dilip case [Dilip v. State of M.P., (2007) 1 SCC 450 : (2007) 1 SCC (Cri) 377] is not

14 correct and is opposed to the law laid down by this Court in Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080] and other judgments.”

21. Having regard to the judgment by the three-Judge

Bench, which directly dealt with this issue, viz., the

correctness of the view in Dilip (supra) reliance

placed by the appellant on paragraph 16 may not be

available. As already noticed, we are not oblivious

of the observation which has been made in the other

three Judge Bench judgment of this Court in SK. Raju

(supra), which it appears, was not brought to the

notice to the Bench which decided the case later in

Baljinder Singh (supra). We notice

however that the later decision draws inspiration from

the Constitution Bench decision in Baldev Singh

(supra). We also notice that this is not a case where

anything was recovered on the alleged personal search.

The recovery was effected from the bag for which it is

settled law that compliance with Section 50 of the Act

is not required.

15

22. The complaint, of non-production of the seized

material, is based on case law of this Court

originating with the judgment of this Court in

Jitendra (supra). It is necessary to survey the case

law beginning with Jitendra (supra). In the said

case, it is necessary to notice certain facts. There

were panch witnesses for the recovery examined by the

prosecution. They turned hostile. Apart from the

prosecution witnesses PW7, PW8 and PW6, there was

found no independent witness regarding recovery. It

is worthwhile to set out paragraph 6. It reads 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

16 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 notice 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 non-production of the seized drugs, the conviction under the NDPS Act can still be sustained, is far-fetched.” (Emphasis supplied)

23. We notice that this decision came to be followed

in the judgment reported in Ashok alias Dangra

Jaiswal (supra). Therein, the Court noted, apart

from seizure witness turning hostile, which was found

to be not an uncommon phenomenon, certain other

features, as are narrated in paragraphs 10 and 11,

which read as under:

“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

17 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 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.”

24. It is thereafter the Court noted that last but

not the least the narcotic powder was never produced

in the trial court as a material object and again

there was no explanation for its non-production. It

was found that there was no evidence to connect

forensic report with the substance that was seized

18 from the possession of the appellant or the other

accused (see paragraph 12). It was in these

circumstances the Court drew support from the

judgment of this Court in Jitendra (supra). The

appellant has not been able to demonstrate in the

facts of this case any facts which could be likened

to the facts stated in paragraphs 10 and 11. At least

nothing was urged by the learned Counsel for the

appellant on these lines.

25. Next judgment to be noticed is Vijay Jain v.

State of Madhya Pradesh8. The first feature we notice

is that the contention about the contraband not being

produced was raised before the trial court (see

paragraph 5). It was a case where a suitcase was

produced as containing the alleged contraband. In

regard to the suitcase, the evidence of PW11 was

elaborately considered. It was found that the only

evidence before the Court was that in the suitcase

there was only a big pack wrapped in cloth and cloth

was torn and there was blue colour polythene in which

there were clothes. The evidence of PW11 did not

8 (2013) 14 SCC 527

19 reveal any brown sugar being found in the suitcase.

No doubt, the Court referred to two samples being

prepared. Then the Court noted that PW3 has stated

before the court that those samples were not prepared

in his presence. PW2 had stated that the witnesses

were not taken to the site where the materials were

seized. In Gorakh Nath Prasad (supra), the Court

noted that neither the seized Ganja nor the sample

drawn at the time of seizure was produced. The

investigating officer-PW7 deposed there were no MR

No. on the sealed material. He was also not sure

whether the seized material had been kept at the

Malkhana and also that it had not been produced in

the Court. The independent witness with regard to

the search and seizure, PW2 and PW3 turned hostile.

In these circumstances, it appears the court went on

to hold that non-production of the seized material

was therefore fatal to the prosecution case. The

Court thereafter referred to the judgment of Ashok

(supra) following Jitendra (supra). Lastly, we

notice the judgment of this Court in Mohinder Singh

20 v. State of Punjab9. It was rendered by a Bench of

three learned Judges. It was a case where the Trial

Court had acquitted the appellant noticing, inter

alia, that no order of the Magistrate was proved to

show that the case property was produced before the

Court. The High Court went on to reverse the

acquittal and convicted the appellant. It is

worthwhile to notice what this Court had said in the

facts of this case:

“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 1-5- 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 1-5-1998 itself. Baldev Singh (PW 5) the then Malkhana incharge 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

9 (2018) 18 SCC 540

21 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.

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.”

26. Finally, it is necessary also to refer to

paragraph 12 regarding the observation made therein.

It would assume relevance, which reads as follows:

“12. For proving the offence under the NDPS Act, it is necessary for the prosecution to establish the quantity of

22 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.”

27. For determining the exact provision applicable

under the law, viz., whether the offence relates to

commercial quantity or the other categories, it may

be necessary.

28. In the facts of this case we, however, notice

certain features. Before the Trial Court, the

contention as such that not seen raised about the

non-production of the contraband articles. We may

also however refer to the judgment of this Court in

Sahi Ram (supra). This was a case where the vehicle

was searched, during which 7 bags of poppy straw, the

gross weight being 233 kg., were found behind the

driver’s seat. Samples were taken. The High court in

appeal by the respondent found that only 2 sample

packets and one bag of poppy straw weighing 2.5 kg.

were produced and relying upon the case law which we

have referred to, acquitted the respondent. The

23 Court also noted paragraph 9 of the judgment in

Jitendra (supra) where the court observed, taking the

cumulative effect of all circumstances, it was not

sufficient to bring home the charge. The Court also

referred to the judgment of this Court in Mohinder

Singh (supra).

29. The Court also went to hold in Sahi Ram (supra)

that if seizure is otherwise proved on record and it

is not even doubted or disputed, it need not be

placed before the Court. The Court further held that

if the seizure is otherwise proved what is required

to be proved is the fact that samples taken out of a

contraband are kept intact. This Court held as

follows:

“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 the said submission singularly weighed with this Court to extend benefit of acquittal only on that ground. As is clear from the decision of this Court in Jitendra [Jitendra v. State of M.P., (2004) 10 SCC 562: 2004 SCC (Cri) 2028],

24 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 [Ashok v. State of M.P., (2011) 5 SCC 123 : (2011) 2 SCC (Cri) 547], 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 [Vijay Jain v. State of M.P., (2013) 14 SCC 527 : (2014) 4 SCC (Cri) 276] , 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 [Vijay Pandey v. State of U.P., (2019) 18 SCC 215 : 2019 SCC Online SC 942] , 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.

16. It is thus clear that in none of the decisions of this Court, non-

production of the contraband material before the court has singularly been found to be sufficient to grant the benefit of acquittal.

25

xxx xxx xxx xxx

18. If the seizure of the material is otherwise proved on record and is not even doubted or disputed, the entire contraband material need not be placed before the court. If the seizure is otherwise not in doubt, there is no requirement that the entire material ought to be produced before the court. At times the material could be so bulky, for instance as in the present material when those 7 bags weighed 223 kg that it may not be possible and feasible to produce the entire bulk before the court. If 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.”

30. In the facts of this case, no doubt the

contraband article weighed 6 kg 300 gms. A perusal

of the judgment of the Trial Court does not appear to

suggest the appellant had taken the contention

regarding non-production of the contraband before the

trial Court. This contention as such is not seen as

taken before the High Court. This is a case where

26 the sample was produced. There is no argument

relating to the tampering with the seal. We further

notice that in the deposition of the investigating

officer (PW7), he has stated as follows:

“The case property is Exhibit P1, sample is Exhibit P2, sample seal is

Exhibit P3 and the bag in which the case property was recovered from the possession of the accused present in the Court is Exhibit P4.”

31. In the facts of this case, we have no hesitation

to reject the contention of the appellant.

32. Next aspect, which we consider is, whether the

conviction of the appellant made by two courts

requires interference on the ground that independent

witnesses were not associated with the investigation,

seizure and recovery. We have noticed the evidence

which is referred to by the appellant to criticize

the impugned judgment on this score. Two courts have

reposed confidence in the deposition of the

prosecution witnesses. The Investigation Officer-

PW7, when examined, has stated as follows:

27

“…At the time of apprehension of accused none from the public was there. There were shops but there was no residential house. Residential colony is at some distance. No woman from the locality was called. Some respectables were tried to be called. I do not remember the names of the said persons. Prem Singh son of Raja Ram resident of Kahri, Sunil son of Ram Mehar resident of Panipat, Gushan Kumar son of Gainda Ram resident of 8 Marla Colony, Panipat were asked to do so. It was about 2 P.M. DSP had also arrived. The aforesaid persons remained with us for 5/10 minutes. They had showed their inability to such a nature that I did not think it proper to take legal action against them. No shop keeper was called…”

33. In the light of this we do not think that a case

has been made for overturning the verdict of guilt

returned against the appellant.

34. In the circumstances, as noted above, though

there appears to be doubt created about whether the

28 DSP was present, upon being called by PW7 having

regard to the testimony of the DSP in the other case,

in view of the fact that the contraband articles were

in fact recovered upon search of the bag, and bearing

in mind the view taken by this Court in Baljinder

Singh (supra), we do not find merit in the argument

of the appellant.

35. Lastly, the learned Counsel for the appellant

made a fervent plea in this case that should his

contentions not be found acceptable, the Court may

direct that appellant may not suffer further

incarceration in the State of Haryana but may

consider her being housed in a jail in the State of

Madhya Pradesh where she would have access to her

family members. This is a matter which we leave upon

to the appellant to seek appropriate relief. Subject

to the same, the appeal stands dismissed. Since the

appellant is on bail, her bail bond shall stand

cancelled.

.......................J. (ASHOK BHUSHAN)

29 ......................

.J. (K.M. JOSEPH)

NEW DELHI, MARCH 02, 2020.

30