MOHINDER SINGHversusTHE STATE OF PUNJAB

910                      [2018]REPORTS
               SUPREME COURT   10 S.C.R. 910              [2018] 10 S.C.R.


A                            MOHINDER SINGH
                                        v.
                           THE STATE OF PUNJAB
                       (Criminal Appeal No. 2182 of 2010)
B                              AUGUST 14, 2018
                 [RANJAN GOGOI, R. BANUMATHI AND
                         NAVIN SINHA, JJ.]
            Narcotic Drugs and Psychotropic Substances Act, 1985: s.50 –
      Prosecution case was that the appellant was carrying contraband
C
      substance in a bag – On search of bag in presence of DSP, the
      substance in bag was found to be opium of 7.04 kg – Two samples
      of 20 gms each were taken and sealed – Case property along with
      two samples deposited in Malkhana and next day produced before
      the Magistrate – Samples parcels sent to FSL and found to be
D     opium – Acquittal by trial court for non-compliance of s.50 of the
      Act and on the ground that the order of the Magistrate did not show
      that the seal of sample sent to FSL tallied with the seal of the
      contraband and, thus evidence regarding such production of case
      property before the Magistrate was not trustworthy – On appeal,
      High Court held that recovery of contraband from a bag/attache
E
      which the accused was carrying in his hands would not amount to
      search of person and as such s.50 would not apply and further, the
      case property parcels of samples and sealed samples were duly
      produced before Magistrate – Based on the said finding, High Court
      reversed the order of acquittal and convicted appellant u/s.18 and
F     sentenced him to undergo ten years imprisonment – On appeal, held:
      Oral evidence of PW-3 and PW-5 as to the deposit of the contraband
      seized from the accused with Malkhana is not corroborated by the
      documentary evidence – 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
G
      that the contraband was produced before the Magistrate cannot
      form the basis to record the conviction – In an appeal against
      acquittal, the High Court will not interfere unless there are
      substantial and compelling reasons to reverse the order of acquittal –
      Considering the case in hand, the findings of the trial court cannot
H     be said to be ‘distorted conclusions’ warranting interference – Based
                                        910
        MOHINDER SINGH v. THE STATE OF PUNJAB                          911


on the oral evidence of PW-2 and PW-3, the High Court ought not        A
to have interfered with the order of acquittal and the conviction of
the appellant under s.18 of the Act was not sustainable.
      Narcotic Drugs and Psychotropic Substances Act, 1985: s.50 –
Personal search – Carrying the contraband substance in the scooter/
bag cannot be said to be ‘by the person’ necessitating compliance      B
of s.50 of the Act for personal search.
     Allowing the appeal, the Court
      HELD: 1. After referring to the oral evidence of PW-2 and
PW-3, the trial court in its judgment has recorded the finding
that no order of the Magistrate to prove the production of the         C
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. For proving
the offence under the NDPS Act, it is necessary for the                D
prosecution to establish 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. [Paras 11-12] [915-E-F, G-H]                               E

      State of H.P. v. Pawan Kumar (2005) 4 SCC 350 : [2005]
      3 SCR 417; Vijay Jain v. State of Madhya Pradesh
      (2013) 14 SCC 527 : [2013] 4 SCR 293 – relied on.
      2. In an appeal against acquittal, the High Court will not       F
interfere unless there are substantial and compelling reasons to
reverse the order of acquittal. 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 PW-2 and PW-3, the High Court ought not to have interfered
with the order of acquittal and the conviction of the appellant        G
under Section 18 of the NDPS Act cannot be sustained. [Paras
15, 16] [916-H; 917-A; 918-C-D]
      Chandrappa and Others v. State of Karnataka (2007)
      4 SCC 415 : [2007] 2 SCR 630; Jugendra Singh v.
      State of Uttar Pradesh (2012) 6 SCC 297 : [2012] 6               H
912            SUPREME COURT REPORTS                         [2018] 10 S.C.R.


A           SCR 193; State of Uttar Pradesh v. Ram Sajivan and
            Others (2010) 1 SCC 529 : [2009] 16 SCR 154;
            Bhaskar Ramappa Madar and others v. State of
            Karnataka (2009) 11 SCC 690 : [2009] 5 SCR 256;
            Chandrappa and others v. State of Karnataka (2007) 4
            SCC 415 : [2007] 2 SCR 630 – relied on.
B
                               Case law reference
      [2005] 3 SCR 417                        relied on          Para 5
      [2013] 4 SCR 293                        relied on          Para 9

C     [2012] 6 SCR 193                        relied on          Para 13
      [2007] 2 SCR 630                        relied on          Para 15
      [2009] 16 SCR 154                       relied on          Para 15
      [2009] 5 SCR 256                        relied on          Para 15
D     [2007] 2 SCR 630                        relied on          Para 15
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 2182 of 2010
           From the Judgment and Order dated 30.06.2010 of the High Court
      of Punjab and Haryana at Chandigarh in Criminal Appeal No. 199-
E     DBA of 2002.
            Harkesh Singh, R. K. Talwar, Chander Shekhar Ashri, Advs. for
      the appellant.
            Ms. Ranjeeta Rohatgi, Kuldip Singh, Advs. for the respondent.
F           The Judgment of the Court was delivered by
            R. BANUMATHI, J. 1. 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
G     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,
      Joginder Singh, SI, Police Station Sadar Ludhiana (PW-2) along with
H     other police officials was checking the vehicles on the bridge of Gill
         MOHINDER SINGH v. THE STATE OF PUNJAB                               913
                  [R. BANUMATHI, J.]

Canal towards the side of village Gill. Meanwhile, at about 7.00-7.30        A
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)
                                                                             B
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         C
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
                                                                             D
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.
      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,            E
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             F
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         G
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        H
914            SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A     to search of person and as such Section 50 of the NDPS Act will not
      apply. Based on the evidence of SI Joginder 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
B
      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
C     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
D     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.
            7. Learned counsel for the State has submitted that from the
E     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
F     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
G     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
H
         MOHINDER SINGH v. THE STATE OF PUNJAB                                915
                  [R. BANUMATHI, J.]

Kilos of “opium” in the bag which he was carrying in the scooter. Carrying    A
the contraband in the scooter/bag cannot be said 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    B
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           C
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.   D
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)      E
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        F
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        G
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.                               H
916            SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A            13. In Vijay Jain v. State of Madhya Pradesh (2013) 14 SCC
      527, this Court reiterated the necessity of production of contraband
      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
B
      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
C             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
D             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
E             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
F             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
G     a finding that there is no order of the Magistrate showing the production
      of the contraband before the 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
H     unless there are substantial and compelling reasons to reverse the order
         MOHINDER SINGH v. THE STATE OF PUNJAB                                 917
                  [R. BANUMATHI, J.]

of acquittal. The mere fact that on reappreciation of evidence the appellate   A
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
                                                                               B
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:
                                                                               C
              (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            D
          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             E
          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.                      F
               (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         G
          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.
                                                                               H
918              SUPREME COURT REPORTS                         [2018] 10 S.C.R.


A                     (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
B     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
C     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.
D            17. In the result, the conviction of the appellant under Section 18
      of the NDPS Act and the sentence of imprisonment imposed on him is
      set aside and this appeal is allowed and the appellant is acquitted of the
      charge.
      Devika Gujral                                                  Appeal allowed.

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