JITENDRA AND ANR.versusSTATE OF M.P.

A                           JITENDRA AND ANR.
                                       V.
                                STATE OF M.P.

                            SEPTEMBER 18, 2003

B          [K.G. BALAKRISHNAN AND B.N. SRIKRISHNA, JJ.]

         Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 8,
    18 and 20-Seizure of drugs-Conviction of appellants under the Act-
    Witnesses turning hostile-Investigating Officer not examined-Held :
C   Drugs seized were not produced before trial court by prosecution-No
    material/cogent evidence was placed before trial court about seizure from
    the appellants-Hence, convictions set aside-Sections 173 and 465-
    Criminal Procedure Code, 1974.

         Appellant no. 1 was standing in front of the house of one R along
D with a scooter. Appellant permitted, on request by the Police, to search
    the dickey of the scooter. The search resulted in recovery of one
    kilogram of charas contained in five packets along with currency notes
    worth Rs. 20,000. Two samples of 100 grams each were taken out and
    sealed. Thereafter, Police searched the house of appellant no. 2, the
E   mother of appellant no. 1, and recovered one kilogram of ganja. Two
    samples of 200 grams each were taken out and sealed as per the
    panchanama. The Forensic Science Laboratory, after chemical
    examination, opined that the samples were charas and ganja
    respectively. The appellants were charged with offences under Section
F   8 read with Sections 18 and 20 of the Narcotic Drugs and Psychotropic
    Substances Act, 1985.

       The trial court acquitted the appellants of the charge under
  Section 8 read with Section 18 but convicted and sentenced them for
G offences under Section 20(b) of the Act. High Court dismissed the
  appeal of appellant no. I and partly allowed the appeal of appellant
  no. 2 by reducing the sentence of imprisonment to the period already
  undergone.

         In appeal to this Court, the appellants contended that the charas
H and ganja seized from them were not produced at the trial; that the
                                      918
                         JITENDRA v. STATE                          919

Malkhana Moharir was not examined during the trial to prove that A
the packets, in which the samples were sealed, had remained in
Malkhana from the time of their receipt to the time of their dispatch
to the Forensic Science Laboratory; that there was no material before
the trial court to prove that the samples, which were dispatched to the
Laboratory were actually drawn from the drugs alleged to have been B
seized; that the High Court relied on a letter dated 14.8.1999 written
by the Superintendent of Police to the Laboratory, which was not
produced during the trial; and that the final report dated 3.10.1999,
submitted under Section 173 Cr. P.C., had stated that the report of the
Laboratory was awaited even though the report of the Laboratory was C
dated 30.8.1999.

     Allowing the appeals, the Court

       HELD : 1.1. The evidence to prove that charas and ganja were
recovered from the possession of the appellants consisted of the evidence D
of the police officers and the panch witnesses, who had turned hostile.
Hence, there is no independent witnesses as to the recovery of the drugs
from the possession of the appellants. The charas and ganja alleged to
have been seized from the possession of the appellants were not even
produced before the trial court, so as to connect it with the samples sent E
to the Forensic Science Laboratory. There is no material produced in the
trial, apart from the testimony of police officers, to show that the charas
and ganja were seized from the possession of the appellants or that the
samples sent to the Laboratory were taken from the drugs seized from
the possession of the appellants. [922-F, G-H, 923-A)
                                                                          F
      1.2. In the trial, it was necessary for the prosecution to establish
by cogent evidence that the alleged quantities of charas and ganja were
seized from the possession of the appellants. The best evidence would
have been the seized materials which ought to have been produced
during the trial and marked as material objects. There is no explanation G
for this failure to produce them. Mere oral evidence as to their features
and production of panchanama does not discharge the heavy burden
which lies on the prosecution, particularly where the offence is
punishable with a stringent sentence under the Narcotic Drugs and
Psychotropic Substances Act, 1985. The Investigating Officer was also H
    920                  SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A not examined. Against this background, it cannot be said that despite
    the pancha witnesses having turned hostile, the non-examination of the
    Investigating Officer and non-production of the seized drugs, the
    conviction under the Act can still be sustained. [923-D-E, F-G)

          1.3. The High Court had relied on a copy of the letter dated
B 14.8.1999 written by the Superintendent of Police to the Director, State
    Forensic Laboratory although this was not a document produced
    during the trial and proved according to law. This is a lacuna
    noticeable in the judgment of the High Court. (923-H, 924-A, 8)

C        1.4. It appears strange that the final report submitted under
    Section 173 of Cr. P.C. on 3.10.1999, on which the charge sheet was
    based, was submitted by the police officer concerned either without
    being aware of or without reading the report of the Forensic Science
    Laboratory. This is another circumstance which militates strongly
D   against the prosecution. (924-C, D, El

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
    1318-1319 of 2002.

          From the Judgment and Order dated 6.12.2001 of the Madhya
E Pradesh High Court in Crl. A. Nos. 411 and 414 of 2000.
         Dr. T.N. Singh, L.S. Chauhan, C.M. Patel and Anil Shrivastava for
    the Appellants.

          Ms. Vibha Datta Makhija and Ms. Bharti Tyagi for the Respondent.
F
          The Judgment of the Court was delivered by

       SRIKRISHNA, J. : These two appeals by special leave are directed
  against a common judgment of the Madhya Pradesh High Court rendered
  in Criminal Appeal No. 411/2000 and Criminal Appeal No. 414/2000
G convicting the appellants herein, Jitendra s/o Vijay Narayan @ Virendra
  Raghuwanshi and Smt. Sheela @ Chandrawati, under the Narcotic Drugs
  and Psychotropic Substances Act, 1985.

          According to the prosecution case Inspector Rajendra Pathak (PW7)
H of Police Station, Datia, received secret information at 5 p.m. on 12th
                JITENDRA v. STATE [SR1KR1SHNA, J.]                     921

August, 1999 that in front of the house of one Rampyari Bilganiya her A
tenant was standing with a scooter without number plate and was likely
to transport charas and opium. S.D.O.(P) Angad Singh (PW8) was present
at the police station when this information was received. A constable was
sent to call two independent witnesses Sandeep (PW2) and Mukesh (PW3 ).
The police party thereafter left for the house of Rampyari at 5.30 p.m. B
According to the prosecution's version, accused Jitendra (Appellant in
appeal No. 411/2000) was standing in front of the house ofRampyari along
with a scooter. On a request by the Police Officer that he may be permitted
to search the dicky of the scooter, and after being apprised that the search
may be given either to the Police Officer present or to the Magistrate, the
accused Jitendra agreed that the search may be taken by the Police Officer. C
The Police Officer opened the dicky with a key supplied by Jitendra. This
search resulted in recovery of five packets of charas in a polythene bag
along with currency notes worth Rs. 20,000. The charas weighed one
kilogram out of which two samples of 100 grams each were taken out and
sealed. Thereafter, the police party accompanied by a lady constable D
Pushpa (PW5), who was called from the police station, entered the house
of Smt. Sheela @ Chandrawati, accused Jitendra' s mother. The house of
Smt. Sheela was searched and one kilogram of ganja was recovered from
the house. That was seized by a seizure memo. Two samples of 200 grams
were taken out and sealed as per the panchanama. The samples were sent
to the Forensic Science Laboratory, Sagar for chemical examination. The E
Chemical Examiner opined that the samples were charas and ganja
respectively. The accused were charged with offences under Section 8 read
with Section 18 and Section 8 read with Section 20 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the
NDPS, Act'). The Special Judge after trial acquitted both the accused of F
the charge under Section 8 read with Section 18 but convicted the accused
Jitendra and Sheela for offences under Section 20(b) of the NDPS, Act.
After a hearing on the question of punishment, appellant Jitendra was
sentenced to rigorous imprisonment for 10 ten years and fine of Rs. one
lakh and in default to a further sentence of two years rigorous imprisonment. G
The Appellant Sheela @ Chandrawati was sentenced to rigorous
imprisonment for three years with a fine of Rs. 5000 and in default to a
further term of rigorous imprisonment of six months.

    Both the convicted accused appealed to the High Court. The High
Court maintained the convictions and sentence imposed upon Jitendra and H
    922                    SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A dismissed his appeal. As far as Smt. Sheela was concerned, the High Court
    reduced the sentence of imprisonment to the period undergone in custody,
    which was about 14 months, and reduced the fine to Rs. 2,000 by partly
    allowing her appeal.

          The learned counsel for the appellants strongly urged that the High
B   Court has completely missed the crucial issue that was urged on behalf of
    the accused. He pointed out that this was a strange case where the material
    objects viz. one kilogram charas alleged to have been seized from the
    custody of Jitendra, and one kilogram ganja alleged to have been seized
    from the possession of Jitendra's mother, accused Sheela, were not at all
C   produced at the trial. Though it was the case of the prosecution that the
    recovered articles of drugs were kept in the Malkhana, neither were the
    material objects producd in the trial, nor was the Malkhana Moharir
    examined during the trial to prove that the packets in which the samples
    were sealed had remained in Malkhana from the time of their receipt to
D   the time of their despatch to the Forensic Science Laboratory. He urged
    that there was no material whatsoever before the trial court to prove that
    the samples which were despatched to the Forensic Science Laboratory
    were actually drawn from the drugs alleged to have been seized from the
    two accused. The learned counsel also urged that the provisions of Section
    52A of the NDPS, Act are mandatory and that there was a violation of these
E   provisions in the matter of drawing of samples as the samples had been
    drawn without the requisite order of the Magistrate as contemplated under
    Section 52A. The learned counsel also urged certain other legal issues, but
    it is not necessary to consider them, since, in our view, the accused are
    entitled to succeed on the first contention of the learned counsel.
F
          The evidence to prove that charas and ganja were recovered from the
    possession of accused consisted of the evidence of the police officers and
    the panch witnesses. The panch witnesses turned hostile. Thus, we find that
    apart from the testimony of Rajendra Pathak (PW?), Angadsingh (PWS)
    and sub-Inspector D.J. Rai (PW6), there is no independent witness as to
G   the recovery of the drugs from the possession of accused. The charas 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 it with the samples
    sent to the Forensic Science Laboratory. There is no material produced in
    the trial, apart from the interested testimony of police officers, to show that
H   the charas and ganja were seized from the possession of the accused or that
                JITENDRA v. STATE [SRIKRISHNA, J.]                      923
the samples sent to. the Forensic Science Laboratory were taken from the A
drugs seized from the possession of the accused. Although, the High Court
noticed the fact that the charas and ganja alleged to have been seized from
the custody of the accused had neither been produced in the 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 B
as it had been proved that the samples were sent to the Chemical Examiner
in a properly sealed condition and those were found to be charas and ganja.
The High Court observed, "non-production of these commodities before
the court is not fatal to the prosecution. The defence also did not insist
during the trial that these commodities should be produced." The High
Court relied on Section 465 of the Cr. C.P. to hold that non-production of C
the material object was a mere procedural irregularity and did not cause
prejudice to the accused.

       In our view, the view taken by the High Court is unsustainable. In
the trial it was necessary for the prosecution to establish by cogent evidence D
that the alleged quantities of charas and ganja were seized from the
prossession 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. There is no explanation for this failure to produce them.
Mere oral evidence as to their features and production of panchanama does
not discharge the heavy burden which lies on the prosecution, particularly E
where the offence is punishable with a stringent sentence as under the
NDPS Act. In this case, we notice that panchas have turned hostile so the
panchanama is nothing but a document written by the concerned police
officer. The suggestion made by the defence in cross-examination is
worthy of notice. It was suggested to the prosecution witnesses that the F
landlady of the house in collusion with police had lodged a false case only
for evicting 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 pancha witnesses having turned hostile,
the non-examination of the Investigating Officer and non-production of the G
seized drugs, the conviction under the NDPS, Act can still be sustained,
is far fatched.

      The learned counsel for the appellants brought to our notice two more
facts. The High Court seems to have relied on a copy of the letter dated
14th August, 1999 written by the Superintendent of Police, Datia to the H
    924                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A Director, State Forensic Laboratory, Sagar and placed reliance thereupon,
  although this was not a document produced during the trial and proved
  according to law. The High Court commented that the prosecution had
  failed to exhibit the letter during the trial and that the trial court was not
  vigilant in this respect. In the absence of anyone affirming the correctness
B of the contents of the letter, the High Court has placed reliance on the
  contents of the letter merely on the ground that the said document was
  mentioned at serial No. 9 in the charge sheet, and presumably its copy must
  have been supplied to the accused. This is another lacuna noticeable in the
  judgment of the High Court.

C       The learned counsel for the appellant drew our attention to the final
  report dated 3.10.1999 submitted under Section 173 of Cr. P.C., from the
  original file. We notice something peculiar here. Jn the final report, in
  Column No. 16, headed "result of laboratory analysis", it is stated "report
  of FSL, Sagar is awaited''. Interestingly, the report of the State Forensic
D Laboratory, Sagar is dated 30.8.1999 (Ex.P/17) certifying that the packets
  'A', 'B' and 'C' sent to the laboratory contained charas and ganja. It
  appears strange to us that the final report submitted under Section 173 of
  Cr.P.C. on 3.10.1999, on which the charge sheet was based, was submitted
  by the police officer concerned either without being aware of or without
  reading the report of the Forensic Science Laboratory. Or else, the Forensic
E Science Laboratory's report is ante-dated. This is another circumstance
  which militates strongly against the prosecution.

         Taking the cumulative effect of all the circumstances, it appears to
    us that the material placed on record by the prosecution does not bring
p   home the charge .,~ reasanable doubt. We are of the view that upon
    the material placed on record it would be unsafe to convict the appellants.
    They. are certainly entitled to the benefit of doubt.

       In the resutl we allott the appeals, set aside the judgment of the High
  Court and the trial court and quash the convictions of the appellants. The
G appellant-Jitendra is directed to release from custody forthwith, if not
  required in any other case.

    B.S.                                                     Appeals allowed.
                          M.C. MEHTA                                       A
                               v.
                    UNION OF INDIA AND ORS.

           ON BEHALF OF MONITORING COMMITTEE

                         SEPTEMBER 18, 2003                                B
               [M.B. SHAH AND B.N. AGRAWAL, JJ.]

     Environment (Protection) Act, 1986:

       S. 3-Taj Trapezium Matter-I.As in a writ petition before Supreme C
Court for removal of industries and other constructions polluting the
atmosphere in the vicinity of Taj Mahal-Diversion of river Yamuna and
further construction activities called as Taj Heritage Corridor Project
sought to be immediately stopped-Construction work found to have been
commenced without clearance ofCentral Government under s.3-A board
 displayed at the site falsely stating that NPCC engaged for development D
 ofheritage corridor for TlZ area under directives ofSupreme Court-CBI
 sub'llitted report to the Court showing that crores of rupees were released
 by the authorities of State of UP. including the Minister for Environment
 without proper sanction by the competent authority and construction work
 carried on without obtaining techno-feasibility report and detailed project E
 reports as also without clearance of Central Government-Approval
 accorded by Chief Minister to the proposal-A subsequent report by CBI
 showing tampering with record to cover up the commissions and omissions-
 Directions given to Central Government and the State Government to hold
 departmental inquiry against erring officials-Directions to CBI to lodge F
 FIR against the persons involved in the matter and to make further
 investigation-CBI to take appropriate steps to hold investigation against
 the then Chief Min.ister of UP., former Minister ofEnvironment, UP. and
 other Officers and to submit a selfcontained note to authorities mentioned
 in the order-Public functionaries.
                                                                           G
    CIVIL ORIGINAL JURISDICTION : Interlocutory Application No.
376 of 2003.

                                    IN

      Writ petition (C) No. 1338I of 1984.                                 H
                                   925