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SUPREME COURT OF INDIA
NAVIN SINHA, INDIRA BANERJEE, JJ.
Hanif Khan @ Annu Khan – Appellant
Versus
Central Bureau of Narcotics Through Inspector L.P.Ojha – Respondent
Criminal Appeal No. 1206 of 2013
Decided On : 20-08-2019
Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 8, 18, 50 – Order of Conviction – Search and Seizure – Appellant is aggrieved by his conviction under Sections 8 and 18(b) of Narcotic Drugs and Psychotropic Substances Act, 1985 sentencing him to 10 years rigorous imprisonment, along with fine of Rs. 1 lakh, with a default stipulation. – Counsel for appellant submits that allegations were with regard to illegal sale/purchase between appellant and acquitted co-accused. – No appeal has been filed against acquittal. – If sale/purchase was not established, conviction of appellant alone is improper. – It is next submitted that PW-1 and PW-2, independent witnesses to search and seizure have turned hostile and have denied their presence during such search and seizure – Counsel further submits that search and seizure memo itself is suspicious in view of large gap in space between signature of appellant and that of independent witnesses – Held, Fact that independent witnesses may have turned hostile is also not very relevant so long as they have admitted their signatures on seizure memo. – Seizure memo is also signed by accused. – There has been compliance with section 50 of NDPS Act also, as appellant was duly informed of his legal rights. – But, considering nature of present prosecution under NDPS Act, court is satisfied that ground urged on behalf of appellant with regard to large vacant place below his signature and that of independent witnesses, is clearly abnormal and cannot be lightly wished away especially when independent witnesses have deposed that they were not present at time of such search and seizure. – It certainly creates a doubt with regard to veracity of the allegations made by prosecution – Delay in production of seized sample coupled with signature on seal being illegible, to our mind creates a serious doubt with regard to prosecution case. – There is no credible evidence that FSL sample produced related to very same contraband stated to have been seized from appellant. – PW-6 in his crossexamination, did not offer any reasonable explanation why sample seized from appellant and deposited in Malkhana could not be produced in Court except after a long gap of one year. – His explanation that he had several important works can hardly be considered sufficient, if not, any justification for same. – Court have also examined Malkhana Register from Trial Court records. – While there is an entry with regard to deposit, Column 11 dealing with exit from Malkhana for taking it to Court is blank. – It may not be unreasonable to presume that delay in production of seized sample before Court was occasioned due to lack of identification consequent to signatures on seized sample having illegible. – Therefore what may have been produced in court cannot be held to be conclusively same sample as seized from appellant – There can hardly be any difference between a case of non-production of a sample and production of a sample doubtful in its identity in being co-related to what was seized from the accused. – It will become doubtful if FSL Report is with regard to very sample seized from an accused – High Court did not advert to evidence of PW-6 or consider prejudice that may have been or may not been caused to appellant by doubtful identity of sample stated to have been seized from him – Single premise of a doubtful identity with regard to sample seized from appellant and that produced in Court, FSL Report loses much of its significance and appellant is held entitled to benefit of doubt – Appeal Allowed
ORDER :
1. The appellant is aggrieved by his conviction under Sections 8 and 18(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the NDPS Act”) sentencing him to 10 years rigorous imprisonment, along with fine of Rs. 1 lakh, with a default stipulation.
2. Learned counsel for the appellant submits that the allegations were with regard to illegal sale/purchase between the appellant and the acquitted co-accused. No appeal has been filed against the acquittal. If the sale/purchase was not established, the conviction of the appellant alone is improper. It is next submitted that PW-1 and PW-2, the independent witnesses to the search and seizure have turned hostile and have denied their presence during such search and seizure.
3. Learned counsel further submits that the search and seizure memo itself is suspicious in view of the large gap in space between the signature of the appellant and that of the of the independent witnesses.
4. Relying on Narcotics Control Bureau vs. Sukh Dev Raj Sodhi (2011) 6 SCC 392, it is submitted that there has been non-compliance with Section 50 of the NDPS Act as the appellant was not informed of his legal right to be searched before a Magistrate. The entire allegations of recovery against the appellant are suspicious as even his father’s name has been recorded incorrectly.
5. The last submission was that there was an inordinately long delay of one year in production of the seized sample before the Court. PW-6 has not furnished any satisfactory explanation with regard to the same. The Trial Court has itself recorded its satisfaction with regard to the signatures on the seizure memo having become illegible. It creates a serious doubt as to whether the sample produced in court was the same as alleged to have been recovered from the appellant. The appellant has been seriously prejudiced in the trial for that singular reason apart from the other grounds urged. Reliance is placed on Vijay Pandey vs. State of Uttar Pradesh 2019 (10) SCALE.
6. Learned counsel for the respondent submitted from the seizure memo, that Section 50 of the NDPS Act stands complied. The appellant was informed of his legal right to be searched in presence of a Magistrate if he so desired. He voluntarily consented to be searched by PW-5, the Sub-Inspector. The fact that there may be any gap between the signature of the appellant on the seizure memo, and the signature of the attesting witnesses, is not very relevant in view of the search and seizure conducted in accordance with the law and the consequent recovery. The acquittal of the co-accused was premised on the only material against him being the confession of the appellant.
7. The sample taken from the seized material was sent the very next day to the Forensic Science Laboratory (“FSL”). There are no allegations of the seal on the sample being tampered. The laboratory test has confirmed the seized material to be Opium. Our attention was also invited to the original Malkhana Register, to demonstrate that the seized sample was deposited on the very same day. In the circumstances, it was submitted that no prejudice has been caused to the appellant even if the signatures on the seized sample had become illegible.
8. We have considered the submissions on behalf of the parties. The prosecution under the NDPS Act carries a reverse burden of proof with a culpable mental state of the accused. He is presumed to be guilty consequent to recovery of contraband from him, and it is for the accused to establish his innocence unlike the normal rule of criminal jurisprudence that an accused is presumed to be innocent unless proved guilty. But that does not absolve the prosecution from establishing a prima facie case only whereafter the burden shifts to the accused. In Noor Aga v. State of Punjab, (2008) 16 SCC 417 it was observed as follows :
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