1. Conviction and sentencing under Sections 8 and 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985, following the recovery of opium. (Para 1 , 2 )
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2019 Supreme(SC) 799
SUPREME COURT OF INDIA
ASHOK BHUSHAN, NAVIN SINHA, JJ.
Vijay Pandey – Appellant
Versus
State of Uttar Pradesh – Respondent
Criminal Appeal Nos.1143 of 2019 (arising out of SLP(Crl.)No.1273 of 2019)
Decided On : 30-07-2019
Important Points
IMPORTANT POINTS
(1) Fact of an earlier conviction may be relevant for the purpose of sentence but cannot be a ground for conviction per se.
(2) Seizure of Opium – Failure of prosecution to relate seized sample with that seized from appellant makes case no different from failure to produce seized sample itself.
(1) Fact of an earlier conviction may be relevant for the purpose of sentence but cannot be a ground for conviction per se.
(2) Seizure of Opium – Failure of prosecution to relate seized sample with that seized from appellant makes case no different from failure to produce seized sample itself.
Subject
Criminal Law - Drug Offenses
Act Referred
Headnote
Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 31 and 50 – Seizure of Opium – Conviction and sentence – No independent witness from locality was included in investigation and all witnesses are police officials only – No name of any person has been mentioned who may have declined to be a witness – High Court, despite noticing absence of any recovery memo prepared at the time of search and seizure under Section 50 of NDPS Act, opined that deposition of police witness to that effect was sufficient compliance – Though Laboratory Report was obtained, but identity of sample stated to have been seized from appellant was not conclusively established by prosecution – Fact of an earlier conviction may be relevant for the purpose of sentence but cannot be a ground for conviction per se – Since allegations against appellant had been proved by witnesses, failure to conclusively identify sample produced as having been seized from appellant was inconsequential – However, High Court did not deal with this aspect of the matter at all – Failure of prosecution in present case to relate seized sample with that seized from appellant makes case no different from failure to produce seized sample itself – In the circumstances mere production of a laboratory report that sample tested was narcotics cannot be conclusive proof by itself – Sample seized and that tested have to be correlated – Conviction by Trial Court and upheld by High Court are unsustainable and accordingly set aside – Appellant acquitted. (Paras 5, 6, 8 and 10)
Facts of the Case:
Appellant is stated to have been carrying a plastic flour packet in his right hand leading to recovery of 10 kgs. Of opium. appellant assails his conviction and sentence under Sections 8 and 15 of the of the Narcotic Drugs and Psychotropic Substances Act, 1985 for 15 years along with fine of Rs.1,50,000/- under Section 31 of NDPS Act.
Findings of the Court:
No name of any person has been mentioned who may have declined to be a witness. The High Court, despite noticing absence of any recovery memo prepared at the time of search and seizure under Section 50 of the NDPS Act, opined that deposition of police witness to that effect was sufficient compliance. Though Laboratory Report was obtained, but identity of sample stated to have been seized from appellant was not conclusively established by prosecution.
Result : Appeal allowed.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Advocates Appeared:
For the Petitioner(s):Tripurari Ray, Balwant Singh Billowria, Suresh Kumar Sharma, Parveen Kumar, Prafulla Kumar, Rajesh Singh, Advocates
For the Respondent(s):Sanjay Kumar Tyagi, Ajay Kr. Prajapati, A.K. Pandey, Yogesh Pachouri, Sandeep Singh, Advocates
For the Petitioner(s):Tripurari Ray, Balwant Singh Billowria, Suresh Kumar Sharma, Parveen Kumar, Prafulla Kumar, Rajesh Singh, Advocates
For the Respondent(s):Sanjay Kumar Tyagi, Ajay Kr. Prajapati, A.K. Pandey, Yogesh Pachouri, Sandeep Singh, Advocates
Table of Contents
2. Dispute over non-compliance with Section 50, absence of independent witnesses, and failure to establish the identity of the seized sample. (Para 3 , 4 )
3. Absence of independent witnesses in residential areas and failure to conclusively correlate the seized sample with the laboratory-tested sample create reasonable doubt. (Para 5 , 6 )
4. Prosecution must establish a prima facie case beyond reasonable doubt and conclusively correlate seized contraband with the sample tested to sustain conviction. (Para 7 , 8 , 9 )
5. Conviction set aside and appellant acquitted. (Para 10 , 11 )
6. Does the reverse burden of proof under the NDPS Act exempt the prosecution from establishing a prima facie case?
No. The reverse burden under Sections 35 and 54 does not dispense with the requirement for the prosecution to establish a prima facie case beyond reasonable doubt after investigation before the burden shifts to the accused. (Para 7 )
7. What is the legal effect of the prosecution's failure to correlate the seized sample with the sample produced in court?
Failure to relate the seized sample to the one produced in court is equivalent to a failure to produce the sample itself, meaning a laboratory report alone is not conclusive proof. (Para 8 , 9 )
8. How does the absence of independent witnesses in a residential locality affect a recovery proceeding?
The failure to include independent witnesses in a residential locality, without explaining why they were unavailable or declined, casts doubt on the validity of the seizure. (Para 5 )
9. Can a defendant's previous convictions under the NDPS Act be used as a ground for conviction in a current trial?
No. While previous convictions may be relevant for the purpose of sentencing, they cannot be used as a ground for conviction per se. (Para 6 )
JUDGMENT :
NAVIN SINHA, J.
1. The appellant assails his conviction and sentence under Sections 8 and 15 of the of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as “the NDPS Act”) for 15 years along with fine of Rs.1,50,000/- under Section 31 of the NDPS Act.
2. The appellant is stated to have been carrying a plastic flour packet in his right hand leading to recovery of 10 kgs. of opium. No independent witness from the locality was included in the investigation and all the witnesses are police officials only.
3. Learned counsel for the appellant alleging false implication contends that he was apprehended as he stepped out of his house. There is no explanation for the non-availability of any independent witness in a residential locality. There is noncompliance with Section 50 of the NDPS Act. The prosecution failed to prove that the sample produced in court was the same as seized from the appellant.
4. Learned counsel for the State submits that the appellant has a previous history of two convictions under the NDPS Act and he is a habitual offender. Section 50 has been complied with. The Trial Court has recorded its satisfaction that the sample produced in court was the same seized from the appellant. In any event it has caused no prejudice to the appellant.
5. We have considered the respective submissions. The seizure was at 06.40 AM at the door step of the appellant. We find it difficult to believe that in a rural residential locality, the police were unable to find a single independent witness. No name of any person has been mentioned who may have declined to be a witness. The High Court, despite noticing the absence of any recovery memo prepared at the time of search and seizure under Section 50 of the NDPS Act, opined that the deposition of the police witness to that effect was sufficient compliance. Though the Laboratory Report was obtained, but the identity of the sample stated to have been seized from the appellant was not conclusively established by the prosecution.
6. The accused had raised an objection regarding the sample produced in court not having been established as seized from him. The Trial Court opined that “the malkhanas in the State of Uttar Pradesh were in miserable condition and strange and objectionable thing come to the eyes”. The plastic packet produced was of very low quality and the quality of ink used in writing the name of the accused on the same was not decipherable and may have got erased with passage of time. Nonetheless, since the allegations against the appellant had been proved by the witnesses, the failure to conclusively identify the sample produced as having been seized from the appellant was inconsequential. Unfortunately, the High Court did not deal with this aspect of the matter at all. The fact of an earlier conviction may be relevant for the purpose of sentence but cannot be a ground for conviction per se.
7. In Mohan Lal vs. State of Punjab, AIR 2018 SC 3853, it was observed:
“10. Unlike the general principle of criminal jurisprudence that an accused is presumed innocent unless proved guilty, the NDPS Act carries a reverse burden of proof under Sections 35 and 54. But that cannot be understood to mean that the moment an allegation is made and the F.I.R. recites compliance with statutory procedures leading to recovery, the burden of proof from the very inception of the prosecution shifts to the accused, without the prosecution having to establish or prove anything more. The presumption is rebuttable. Section 35(2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. The stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of ten years, absence of any provision for remission, do not dispense with the requirement of the prosecution to establish a prima facie case beyond reasonable doubt after investigation, only after which the burden of proof shall shift
