IMPORTANT POINT
Unless there is actual production of case property in Court prosecution case would not be established.

JUDGMENT

We have heard the learned counsels for the parties.

2. The accused-appellant has been convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act) and sentenced to undergo rigorous imprisonment for a term of ten years. The conviction and sentence has been affirmed in appeal.

3. As the appeal has been argued on merits despite the fact that the accused has served the period of sentence, we have considered the matter in great detail.

4. We have perused the judgment of the trial Court as well as the High Court, the evidence of the main witnesses of the prosecution and also the documents exhibited in the course of the trial. What emerges from a consideration of the evidence on record is that apart from the oral testimony of PW-7 (Dharambir Singh, Sub-Inspector) to the effect that the case property was deposited in the Malkhana and it was also produced in Court, there is no documentary evidence to the said effect. In fact, PW-7 in his cross- examination, had admitted that the bags of poppy-husk has not been produced in Court and that he had not obtained the signature of the Malkhana In-charge at the time of the alleged deposit of the case property in the Malkhana.

5. It is also admitted by the said witness in cross-examination that he had not recorded in the Rojnamcha about handing over of the case property to the Malkhana in the report under Section 57 of the NDPS Act. The evidence of PW-1 (Vijender Singh, Head-Constable) is to the further effect that the Malkhana register does not indicate about the deposit of sealed property and in fact that there is no entry of such deposit in the Malkhana Register.

6. In a series of decisions of this Court reported in Vijay Jain vs. State of Madhya Pradesh, (2013) 14 SCC 527 , Ashok @ Dangra Jaiswal vs. State of Madhya Pradesh, (2011) 5 SCC 123, Noor Aga vs. State of Punjab & Anr, (2008) 16 SCC 417 and Jitendra & Anr vs. State of Madhya Pradesh, (2004) 10 SCC 562: (2003) 4 Crimes 225 : (2003) 7 Supreme 68 , it has been held that unless there is actual production of the case property in Court the prosecution case would not be established. This is for the reason that the Court must satisfy itself that the seal(s) on the case property tallies with the seal(s) of the sample(s) sent for analysis to rule out any possibility of foul play.

7. The above position is demonstrated by the evidence on record would lead us to hold that the prosecution in the present case has failed to establish the charge against the accused person beyond a reasonable doubt. The accused therefore is entitled to an acquittal. The order of conviction under Section 15 of the NDPS Act recorded by the learned trial Court and affirmed by the High Court is consequently set aside.

8. The appeal is allowed in the above terms.

Appeal allowed.

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