Union Of India vs Jarooparam

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 741-742 OF 2011

UNION OF INDIA … APPELLANT

VERSUS

JAROOPARAM … RESPONDENT

JUDGMENT

N.V. RAMANA, J.

At the outset, it may be noted that Criminal Appeal No. 742

of 2011 has already been dismissed as abated by this Court’s order

dated 11th April, 2016 passed by the Hon’ble Judge in Chamber. We

are now called upon to deal with Criminal Appeal No. 741 of 2011 only

which is directed against the Judgment and Order dated 23 rd

February, 2010 passed by the High Court of Madhya Pradesh, Bench

at Indore in Criminal Appeal No. 621 of 2008. By the said judgment,

the High Court allowed the appeal of the respondent herein and

acquitted him of the charges leveled against him under Section 8/18

(B) read with Section 29 of the Narcotic Drugs and Psychotropic Signature Not Verified Digitally signed by SUKHBIR PAUL KAUR Date: 2018.02.12 07:00:42 PKT

Substances Act, 1985 (hereinafter referred to as ‘the Act’). Reason:

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2. Brief history of the case as emanated from the prosecution

story is that upon receiving information from an informant on 11 th

May, 2004 PW7—P.K. Sinha (Inspector) laid a trap and intercepted

three accused persons including the respondent herein at Bhilkhanda

Square and found 7.2 kg of contraband material (opium) in the

possession of the accused—respondent. Two samples were then

prepared weighing 30 grams each and marked as ‘A1’ and ‘A2’ and the

remaining material was sealed and marked as ‘A’. The accused

confessed to have committed the offence and after recording his

statement a report has been submitted to the Superintendent who

appointed Harvindar Singh (PW 6) as Investigating Officer. After

depositing the seized contraband at Malkhana, the samples were sent

for chemical examination and a complaint under Sections 8/18 and

29 of the Act against the accused has been filed. Taking cognizance of

the Complaint, the Special Judge, Neemuch by his judgment dated

21st April, 2008 convicted the accused and sentenced him to suffer

rigorous imprisonment for a period of ten years and to pay a fine of

Rs.1,00,000/-.

3. Agitating the judgment of the learned trial Judge, the

accused filed appeal before the High Court. By the impugned

judgment, the High Court observed that the bulk quantity of the 3

seized case property was not disposed of by the Executive Magistrate,

the statement of the accused under Section 67 of the Act was recorded

when the accused was in police custody after arrest and the signature

of the accused were falsely obtained on blank papers and hence his

statement cannot be taken as that of voluntarily made under the

provisions of the Act. Therefore, the High Court allowed the appeal of

the accused and acquitted him of the charges. The aggrieved State is

in appeal before us.

4. We have heard learned senior counsel appearing for the

State and learned counsel for the accused—appellant as well, and

carefully gone through the material on record.

5. Learned senior counsel for the State centered his arguments

on the provisions of Section 52A of the Act to submit that on 14 th

October, 2004 after submitting the seized case contraband property to

the Executive Magistrate, it was found that two polythene packets

contained 4 kg and 3.2 kg of opium respectively and from them 30-30

grams each of two packets have been prepared and marked as A3 and

A4 and sealed. Before opening the seized stuff and after preparing the

samples, photographs were taken and the Executive Magistrate has

duly signed with seal on all the sealed packets and samples. The case 4

property was accordingly destroyed under the provisions of the Act

and the inventory and photographs were submitted during trial which

form primary evidence under the Act, but the High Court failed to

consider them to be under the provisions of law. Learned senior

counsel further submitted that the High Court committed serious

error by simply believing the testimony of the accused that his

signatures were obtained on blank papers forcibly, though there was

enormous evidence in support of the prosecution case.

6. Learned counsel for the accused, on the other hand,

supported the impugned judgment and submitted that the High Court

considered all aspects of the case in a prudent manner under the

established provisions of law, particularly Section 52-A of the Act, and

then only reached to the conclusion that the prosecution has failed to

prove the case against the accused—respondent.

7. Having considered the rival submissions and the material

on record, at the outset, we think it appropriate to quote here what the

High Court has observed in para 9 of the impugned judgment:

“In the proceedings under Section 52-A of the Act, Harvindar Singh, PW-6 has deposed that he got the property of this case disposed of by the Executive Magistrate of Singoli by order sheet Ex.P/28. At that time photos of the seized property were taken, which are 5

Ex-P/34 and the same was kept in the envelope Ex. P/29. The order sheet Ex. P/28 shows that property was not disposed of by the Executive Magistrate and Tehsildar, Singoli, but after the properation of the samples A-3, A-4 and B-3, B-4 and C-3, C-4, the above samples and the bulk quantity of the property was returned to the presenting officer Harvindar Singh, Inspector of CBN. On this order sheet, there is receipt of articles by Inspector Harvindar Singh. In this way, only the samples were prepared by the Executive Magistrate and Tehsildar, Singoli, but actual property was not disposed of. In para 79 of the impugned judgment, it has also been ordered by the Court that the property be kept pending as co-accused is absconding. This also shows that the property was not disposed of. It was not produced at the time of the trial in the Court. In the absence of the production of the bulk quantity of the opium, it cannot be proved that the samples Articles—A, B, C, D, E, F were prepared from the bulk quantity”.

8. What transpires from the above quoted paragraph is that

after taking out two samples of 30 grams each, the Executive

Magistrate returned the entire remaining seized property to the

Investigating Officer—PW 6. To further ascertain the same, we have

also carefully perused the exact content of the proceedings dated 14 th

October, 2004 (Annexure P-5) recorded by the Executive Magistrate,

Singoli Tappa. The proceedings recorded as far as the respondent

herein is concerned, read thus:

PROCEEDINGS 14.10.2004 : Case submitted. Shri Harvinder Singh, Inspector (Investigating Officer), Narcotics Bureau, Singoli has submitted three sealed packets of seized stuff in Crime No. 1/2004 under Section 8/18 and 8/29 of the NDPS Act, 1985. These packets were marked A, B and C and the 6

details are given as under;

(1) A : On the packet marked “A” it was indicated that packet contains 7.200 kgs opium seized from Jaroopram S/O Ganga Ram Bishnoi. On opening the packet, transparent polythene bag was found, in which again two polythene packets found. One polythene indicated 4.000 kgs and the second one 3.200 kgs opium respectively. A composite sample of 30-30 grams each have been taken from the two packets and kept in a small plastic polythene and marked A3 and A4 and sealed. The remaining seized stuff and samples sealed as usual are handed over to the presenting Officer Shri Harvinder Singh, Inspector.

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 also 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 situation, it

assumes importance that there was nothing on record to show as to

what happened to the remaining bulk quantity of contraband. The

absence of proper explanation from the prosecution significantly

undermines its case and reduces the evidentiary value of the

statements made by the witnesses.

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10. Omission on the part of the prosecution to produce the bulk

quantity of seized opium would create a doubt in the mind of 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. 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 of time any prayer

had been made by the prosecution for destruction of the said opium or

disposal thereof otherwise. The only course of action the prosecution

should have resorted to is to for its disposal is to obtain an order from

the competent Court of Magistrate as envisaged under Section 52A 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 Vs State of Punjab & Anr. (2008) 16

SCC 417].

11. 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 any such order was

passed by the Magistrate. Even no notice has been given to the 8

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 a haste and awarded conviction to the respondent

without warranting the production of 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.

12. Turning to the other discrepancies in the prosecution case,

PWs 1 and 2 the independent witnesses portrayed by the prosecution

have turned hostile and did not support its case. It is manifest from

the record that they had simply put their signatures on the papers at

the whims of investigating agency. Another aspect that goes in favour

of the accused is that, the version of prosecution that the respondent

voluntarily made the confessional statement cannot be believed in the

light of admission by Narcotics Officer (PW 5), a key prosecution

witness, that the statement of accused—respondent under Section 67

of the Act was recorded while he was in his custody and the time was

not mentioned on the statements. This fact further gets corroborated

with the statement of PW 6 also that the statement of accused was

recorded after arrest and while in custody. Thus, it cannot be said that 9

the statement of the accused confessing the crime was of voluntarily

made under the provisions of the Act.

13. For the aforesaid reasons, we are in complete agreement

with the judgment of the High Court. We do not find any reason to

interfere with the well reasoned judgment. The appeal lacks merit and

is dismissed. Pending applications, if any, shall also stand disposed of.

……….......................J. (N.V. RAMANA)

...............................J. (S. ABDUL NAZEER) New Delhi, January 31, 2018.

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ITEM NO.105 COURT NO.9 SECTION II-A

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Criminal Appeal No(s). 741-742/2011

UNION OF INDIA Appellant(s) VERSUS

JAROOPARAM Respondent(s)

(Criminal Appeal No.742 of 2011 is dismissed as abated. Vide Order dated 11.4.2016 passed by Hon'ble Judge in Chamber in Crl.MP.No. 5197-98)

Date : 31-01-2018 These appeals were called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE N.V. RAMANA HON'BLE MR. JUSTICE S. ABDUL NAZEER

For Appellant(s) Mr. K. Radhakrishnan, Sr.Adv.

Ms. Sadhana Sandhu, Adv.

Ms. Kiran Bhardwaj, Adv.

Mr. B.V. Balaramdas, Adv.

Mr. Manish Vashishtha, AOR For Respondent(s) Mr. Sushil Kumar Jain, Sr.Adv.

Mr. Puneet Jain, Adv.

Mr. Harsh Jain, Adv.

Mr. Abhinav Gupta, Adv.

Ms. Christi Jain, Adv.

For Ms. Pratibha Jain, AOR

UPON hearing the counsel the Court made the following O R D E R

Criminal Appeal No. 741 of 2011 is dismissed in terms of the signed reportable judgment.

Pending applications, if any, shall stand disposed of.

(SUKHBIR PAUL KAUR) (RENUKA SADANA) AR CUM PS ASST.REGISTRAR

(Signed reportable judgment is placed on the file)