ASHOK @ DANGRA JAISWALversusSTATE OF M.P.

                   [2011) 4 S.C.R. 253


             ASHOK @ DANGRA JAISWAL                         A
                            V.
                     STATE OF M.P.
           (Criminal Appeal No. 1438 of 2008)
                     APRIL 05, 2011
                                                            B
         [AFTAB ALAM AND R.M. LO_l)HA, JJ.]

      Narcotic Drugs and Psychotropic Substances Act, 1985
- ss. 8121 (b) - Personal search of appellant and his two
employees - Alleged recovery of smack powder - Conviction C
and sentence u/ss. 8121 (b) - Appeal by the appellant and one
of his employee dismissed by the High Court - Appeal before
the Supreme Court by the appellant - Held: Independent
witness of seizure were declared hostile by the prosecution -
It is not clear where the samples were laid or were handled D
by how many people and in what ways, from the time of the
seizure of the narcotic substance till their deposit in the
Forensic Laboratory - Alleged narcotic substance that was
seized from the accused was deposited in the Malkhana about
two months later- No explanation where the seized substance E
was kept in the meanwhile - Also non-production of the
alleged narcotic powder as also the appellant before the trial
court - Thus, no evidence to connect the forensic report with
the substance that was seized from the possession of the
appellant or the other accused - Appellant entitled to the F
benefit of doubt and acquitted of the charges - Benefit of the
order of acquittal extended to the non-appealing accused as
well.
     According to the prosecution, on a pe..Sonal search,
smack powder was recovered from the appellant as also       G
his employees,. 'K' and 'G'. The samples were taken from
the recoveries made and sent for investigation. On the
basis of the forensic report, the appellant and his two
employees were convicted under Sections 8/21 (b) of the
                            253                             H
    254       SUPREME COURT REPORTS            [2011) 4 S.C.R.


A Narcotic Drugs and Psychotropic Substances Act, 1985
  and sentenced accordingly. Only, the appellant and 'G'
  filed appeals before the High Court and the same were
  dismissed. The appellant has filed the instant appeal.

          Allowing the appeal, the Court
B
         HELD: 1.1 There were two independent witnesses of
    the seizure, namely, 'A' and 'U' whose signatures were
    taken on the seizure memos. They were examined before
    the court as PWs 8 and 9 respectively. Neither of the two
C   supported the case of the prosecution. PW.8 was, as a
    matter of fact, quite emphatic in his denial of any recovery
    having been made from the appellant or the other
    accused in his presence. Both were declared hostile by
    the prosecution. Therefore, both the trial court and the
D   High Court had to rely upon the testimony of PW 10 who
    was the Station House Officer at the material time and
    who had conducted the raid to accept the prosecution
    case of recovery of the suspected narcotic from the
    accused. The seizure witnesses turning hostile may not
E   be very significant, as it is not an uncommon
    phenomenon in criminal trials, particularly in cases
    relating to NDPS but there are some other circumstances
    which, when taken together, make it very unsafe to
    uphold the appellant's conviction. [Paras 8 and 9) (258-
F   G-H; 259-A-C]

      1.2 The seizure of the alleged narcotic substance is
  shown to have been made on March 8, 2005, at 11 :45 in
  the evening. The samples taken from the seized
  substance were sent to FSL on March 10, 2005, along
G with the draft. The samples sent for forensic examination
  were, however, not deposited at the FSL on that date but
  those came back to the police station on March 12, 2005
  due to some mistake in the draft or with some query in
  respect of the draft. The samples were sent back to the
H FSL on March 14, 2005, after necessary corrections in the
  ASHOK@ DANGRA JAISWAL v. STATE OF M.P.               255

draft and/or giving reply to the query and on that date the   A
samples were accepted at the FSL. From the time of the
seizure in the late evening of March 8, 2005, till their
deposit in the FSL on March 14, 2005, it is not clear where
the samples were laid or were handled by how many
people and in what ways. [Para 10] [259-D-F]                  B

     1.3 The FSL report came on March 21, 2005, and on
that basis the police submitted charge-sheet against the
accused on March 31, 2005, but the alleged narcotic
substance that was seized from the accused, including         C
the appellant was deposited in the Malkhana about two
months later on May 28, 2005. There is no explanation
where the seized substance was kept in the meanwhile.
[Para 11] [259-G-H; A]

     1.4 The alleged narcotic powder seized from the          D
possession of the accused, including the appellant was
never produced before the trial court as a material exhibit
and there is no explanation for its non-production. Thus,
there is no evidence to connect the forensic report with
the substance that was seized from the possession of the      E
appellant or the other accused. [Para 12] [260-B]
    1.5 The appellant is entitled to the benefit of doubt
and acquit him of the charges and set aside the
judgments and orders passed by the trial court and the        F
High Court. [Para 15]
    Jitendera and Anr. v. State of M.P. (2004) 10 SCC 562
- relied on.
     2. Though the other two accused, 'K and "G' did not      G
file appeal before this Court, there is no reason why the
benefit of this judgment may not be extended to them as
well. From the possession of "K' the recovered quantity
was 100 grams and from 'G' 35 grams. All the three
accused including the appellant were tried together and       H
    256       SUPREME COURT REPORTS           [2011) 4 S.C.R.

A the other two accused 'K' and 'G' have also been given
  the same sentence as the appellant. The lapses in the
  prosecution and the facts and circumstances that have
  been noted and that have taken into account for setting
  aside the conviction of the appellant apply equally to the
B case of 'K' and 'G'. It 'would be unjust, therefore, to let
  them rot in jail even while allowing the appeal preferred
  by the appellant. The conviction and sentence is also set
  aside and they too along with the appellant are directed
  to be released forthwith unless anyone of them Is
c required In connection with any other case. [Paras 16 and
  17] [262-C-H]

       Raja Ram and Ors. v. State of M.P. (1994) 2 sec 568;
  Dandu Lakshmi Reddy v. State of A.P. (1999) 7 SCC 69;
  State ofHaryana and Ors. v. Sumitra Devi and Ors. (2004)
D 12 SCC 322; Mangoo v. State of M.P. (2008) 8 SCC 283;
  Bachan Singh v. State of Bihar (2008) 12 SCC 23 - relied
    on.

                        Case Law Reference:
E         (2004) 1o sec 562     Relied on           Para 13
          (1994) 2 sec 568      Relied on           Para 16
          (1999) 1 sec 69       Relied on           Para 16

F         (2004) 12 sec 322     Relied on           Para 16
          (2008) a sec 283      Relied on           Para 16
          (2008) 12 sec 23      Relied on           Para 16

G       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1438 of 2008.

        From the Judgment & Order dated 17.04.2008 of the High
    Court of Judicature Madhya Pradesh at Jabalpur in Criminal
    Appeal No. 2511 of 2005.
H
   ASHOK @ DANGRA JAISWAL v. STATE OF M.P.                   257

    Akshat Shrivastava (for Dharam Bir Raj Vohra) for the           A
Appellant.
     Vibha Datta Makhija for the Respondent.
     THe Judgment of the Court was delivered by
                                                                  B
     AFTAB ALAM, J. 1. The appellant stands convicted under
Sections 8/21 (b) of the Narcotics Drugs & Psychotropic
Substance Act, 1985 (hereinafter referred to as "the NDPS
Act") and sentenced to undergo rigorous imprisonment for 7
years and a fine of Rs.25,000/-with the direction that in default C
of payment of fine, he would undergo rigorous imprisonment
for a further period of one year.
     2. On March 8, 2005, at about 3.30 p.m. one Anil Kumar
Jharkhadia (PW.10), Town Inspector, Police Station Kareli           D
received information that the appellant, the owner of Satyanarain
Talkies is engaged in selling of smack powder (heroin in
common parlance) from his cinema hall. After completing the
formalities, the police party proceeded to the cinema hall where
the Town Inspector, complying with the mandate of the law,          E
subjected the appellant to a personal search. The search, made
under the Search Memo, Exhibit P.17, yielded three packets
from the pocket of the 'kurta' worn by the appellant. The plastic
packets contained smack powder, the total weight of which wae
175 grams. The suspected narcotic recovered from the
appellant was seized under seizure memo, Exhibit P.22. From         F
the seized powder, two samples of five grams each were taken
and were put in two separate sealed packets marked as Article
A and A1. The remainder 165 gram Vias put in a separate
sealed packet marked as Article A-2.
                                                                    G
     3. Following the appellant, his two employees, namely
Kanki @ Vishnu and Guddu Maharaj, who were present there
at that time, were also subjected to personal search and from
the possession of Kanki 100 grams and from Guddu Maharaj
35 grams smack powder was recpvered. Samples were                   H
    258       SUPREME COURT REPORTS                 [2011) 4 S.C.R.


A   similarly taken from the recoveries made from those two
    accused also.

       4. The samples taken from the smack powder alleged to
  have been recovered from the three accused, including the
  appellant were sent to Forensic Science Laboratory vide draft,
8
  Exhibit P.31. The FSL report, Exhibit P.32 confirmed that the
  samples contained diacetylmorphine (heroin). On completion
  of investigation, charge-sheet was submitted against all the
  three accused, including the appellant on 31.3.2005. Charges
  were framed against the accused and they were put on trial.
C The trial court by judgment and order dated 9.11.2005 passed
  in Special Case No.4/2005 held all the three accused, including
  the appellant guilty of offences punishable under Sections 8/
  21(b} of the NDPS Act and sentenced them as noted above.

D       5. Against the judgment of the trial court, the appellant
  preferred Criminal Appeal No.2511/2005 before the High Court.
  Another appeal being Criminal Appeal no.86 of 2006 was filed
  by Guddu Maharaj. There is, however, no indication that the
  third accused Kanaki took the matter in appeal. The High Court
E dismissed both the appeals by judgment and order dated April
  17, 2008.

        6. The appellant alone has come in appeal against the
    judgment of the High Court.

F        7. On hearing Mr. Akshat Shrivastava, learned counsel for
    the appellant and Ms. Vibha Datta Makhija, learned counsel for
    the State and on going through the materials on record, we find
    th~re are several features in this case that make it very difficult
    for us to sustain the conviction of the appellant.
G
       8. To begin with, there were two independent witnesses
  of the seizure, namely, Ajay Purohit and Udaipal Singh whose
  signatures were taken on the seizure memos, Exhibits P .22 to
  24. They were examined before the Court as PWs 8 and 9
H respectively. Neither of the two supported the case of the
  ASHOK @ DANGRA JAISWAL v. STATE OF M.P.                    259
             [AFTAB ALAM, J.]
prosecution. PW.8 was, as a matter of fact, quite emphatic in       A
his denial of any recovery having been made from the appellant
or the other accused in his presence. Both were declared
hostile by the prosecution. Both the trial court and the High
Court had, therefore, to rely upon the testimony of R. K.
Jharkhandia, PW 10 who was the Station House Officer at the         B
material time and who had conducted the raid to accept the
prosecution case of recovery of the suspected narcotic from
the accused.

      9. The seizure witnesses turning hostile may not be very
significant, as it is not an uncommon phenomenon in criminal        C
trials, particularly in cases relating to NDPS but there are some
other circumstances which, when taken together, make it very
unsafe to uphold the appellant's conviction.

     10. The seizure of the alleged narcotic substance is shown     D
to have been made on March 8, 2005, at 11 :45 in the evening.
The samples taken from the seized substance were sent to FSL
on March 10, 2005, along with the draft, Exhibit P.31. The
samples sent for forensic examination were, however, not
deposited at the FSL on that date but those came back to the        E
police station on March 12, 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 March 14, 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       F
of the seizure in the late evening of March 8, 2005, till their
deposit in the FSL on March 14, 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 March 21, 2005, and on that        G
basis the police submitted charge-sheet against the accused
on March 31, 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 May 28, 2005. There
                                                                    H
         260       SUPREME COURT REPORTS                [2011) 4 S.C.R.

     A is no explanation where the seized substance was kept in the
       meanwhile.
            12. Last but not the least, the alleged narcotic powder
       seized from the possession of the accused, including the
     B 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.
     C      13. It may be noted here that in Jitendera and anotherv.
       State of M.P., (2004) 10 SCC 562, 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
     D conviction on that basis. In Jitendra (supra), the Court observed
       and held as under:-
               "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
     E         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
     F         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
..   G         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. Although the High Court noticed the fact that the
     H         charas and ganja alleged to have been seized from the
ASHOK@ DANGRA JAISWAL v. STATE OF M.P.                    261
          [AFTAB ALAM, J.]
  custody of the accused had neither been produced in the         A
  court, nor marked as articles, which ought to have been
  done, the High Court brushed aside the contention by
  observing that it would not vitiate the conviction as it had
  been proved that the samples were sent to the Chemical
  Examiner in a properly sealed conc!ition and those were         B
  found to be charas and ganja. The High Court observed,
  •non-production of these commodities before the court is
  not fatal to the prosecutian. The defence also did not insist
  during the trial that these commodities should be
  produced". The High Court relied on Section 465 CrPC            c
  to hold that non-production of the material object was a
. mere procedural irregularity and did not cause prejudice
  to the accused.
  6. In our view, the view taken by the High Court is
  unsustainable, In the trial it was necessary for the D
  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. E
  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 F
  Ad. 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 . G
  of the house in collusion with the police had lodged a false
  case only for eviding 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
                                                               H
    262        SUPREME COURT REPORTS                 [2011] 4 S.C.R.


A         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."
          14. The decision in Jitendra (supra) applies to the facts
    of this case with full force.
B
          15. We, accordingly, hold that the appellant is entitled to
    the benefit of doubt and acquit him of the charges and set aside
    the judgments and orders passed by the trial court and the High
    Court.
c       16. At this stage, it may be noted that though the other two
  accused, namely, Kanki @ Vishnu and Guddu Maharaj are not
  before us, we see no reason why the benefit of this judgment
  may not be extended to them as well. From the possession of
  Kanki @ Vishnu, the recovered quantity was 100 grams and
D from Guddu Maharaj 35 grams. All the three accused including
  the appellant were tried together and the other two accused
  Kanki @ Vishnu and Guddu Maharaj have also been given the
  same sentence as the appellant. The lapses in the prosecution
  and the facts and circumstances that have been noted above
E and that have weighed with us for setting aside the conviction
  of the appellant apply equally to the case of Kanki @ Vishnu
  and Guddu Maharaj. It will be unjust, therefore, to let them rot
  in jail even while allowing the appeal preferred by the appellant.
  (See: Raja Ram and others v. State of M.P., (1994) 2 sec
F 568, Dandu Lakshmi Reddy v. State of A.P., (1999) 7 sec
  69, State of Haryana and others v. Sumitra Devi and others,
  (2004) 12 SCC 322, Mangoo v. State of M.P., (2008) 8 SCC
  283, Bachan Singh v. State of Bihar, (2008) 12 SCC 23) We,
  accordingly, direct that their conviction and sentence be also
G set aside and they too along with the appellant be released
  forthwith unless anyone of them is required in connection with
  any other c~se.
          17. The appeal is, accordingly, allowed.
H N.J.                                               Appeal allowed