THAN KUNWARversusSTATE OF HARYANA

1090                      [2020]REPORTS
                SUPREME COURT   3 S.C.R. 1090                [2020] 3 S.C.R.


 A                              THAN KUNWAR
                                         v.
                              STATE OF HARYANA
                        (Criminal Appeal No. 2172 of 2011)
 B                               MARCH 02, 2020
               [ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
              Narcotic Drugs and Psychotropic Substances Act, 1985 –
       s.50 – Applicability of s.50 in a case where there is personal search
       also – In the instant case, appellant and another accused carrying
 C
       a bag in their hands were intercepted by police party – Contraband
       goods weighing 6 kg 300 gms were recovered from the bag –
       Conviction of appellant under s.18 by courts below – Challenged
       on the ground that s.50 was not complied; that DSP-Gazetted Officer
       in whose presence the search as alleged by the prosecution was
 D     conducted was present at the same time in another case; that the
       contraband allegedly 6 kgs 300 gms was not produced before the
       court and that prosecution has not associated any independent
       prosecution witness in support of its case – Held: This is not a case
       where anything was recovered on the alleged personal search –
       The recovery was effected from the bag for which law is settled that
 E
       compliance with s.50 of the Act is not required – The contention
       regarding non-production of the contraband was not taken before
       the trial Court – This contention as such was taken before the High
       Court – This is a case where the sample was produced – There was
       no argument relating to the tampering with the seal – Courts below
 F     reposed confidence in the deposition of the prosecution witnesses –
       Thus, in the light of this, a case was not made for overturning the
       verdict of guilt returned against the appellant – In the circumstances,
       even though there appeared doubt as to whether the DSP was
       present, upon being called by PW7 having regard to the testimony
       of the DSP in the other case, in view of the fact that the contraband
 G
       articles were in fact recovered upon search of the bag, and bearing
       in mind the view taken in Baljinder Singh, the case of the appellant is
       rejected.


 H
                                        1090
           THAN KUNWAR v. STATE OF HARYANA                             1091


      Dismissing the appeal, the Court                                 A
       HELD: This is not a case where anything was recovered
on the alleged personal search. The recovery was effected from
the bag for which it is settled law that compliance with Section 50
of the Act is not required. The judgment of the Trial Court did
not appear to suggest the appellant had taken the contention           B
regarding non-production of the contraband before the trial Court.
This contention as such was taken before the High Court. This
is a case where the sample was produced. There is no argument
relating to the tampering with the seal. Though there appears to
be doubt created about whether the DSP was present, upon being
called by PW7 having regard to the testimony of the DSP in the         C
other case, in view of the fact that the contraband articles were in
fact recovered upon search of the bag, there is no merit in the
argument of the appellant. [Paras 21, 30, 34][1098-G-H; 1104-E-
F; 1105-E]
      Ashok alias Dangra Jaiswal v. State of Madhya Pradesh            D
      (2011) 5 SCC 123 : [2011] 4 SCR 253 – distinguished.
      State of Punjab v. Baljinder Singh and Another (2019)
      10 SCC 473 – relied on.
      Jitendra and Another v. State of M.P (2004) 10 SCC               E
      562 : [2003] 3 Suppl. SCR 918 ; Gorakh Nath Prasad
      v. State of Bihar (2018) 2 SCC 305 ; State of Rajasthan
      v. Sahi Ram (2019) 10 SCC 649 ; Dilip and Another v.
      State of M.P. (2007) 1 SCC 450 : [2006] 9 Suppl. SCR
      390 ; SK. Raju alias Abdul Haque alias Jagga v. State
      of West Bengal (2018) 9 SCC 708 : [2018] 10 SCR                  F
      731 ; Vijay Jain v. State of Madhya Pradesh (2013) 14
      SCC 527 : [2013] 4 SCR 293 ; Mohinder Singh v. State
      of Punjab (2018) 18 SCC 540 : [2018] 10 SCR 910 –
      referred to.
                      Case Law Reference                               G
[2003] 3 Suppl. SCR 918         referred to           Para 4
(2018) 2 SCC 305                referred to            Para 4
(2019) 10 SCC 649               referred to            Para 5
                                                                       H
1092            SUPREME COURT REPORTS                          [2020] 3 S.C.R.


 A     [2006] 9 Suppl. SCR 390          referred to            Para 6
       (2019) 10 SCC 473                relied on              Para 7
       [2018] 10 SCR 731                referred to            Para 7
       [2013] 4 SCR 293                 referred to            Para 25
 B     [2018] 10 SCR 910                referred to            Para 25
       [2011] 4 SCR 253                 distinguished          Para 23
             CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
       2172 of 2011.
 C           From the Judgment and Order dated 18.08.2008 of the High Court
       of Punjab and Haryana at Chandigarh in Criminal Appeal No. 2113-SB
       of 2005.
             Uday Gupta, Hiren Dasan, Chand Qureshi, Hemant Kushwaha,
       Ashish Gupta, Mrs. Sarla Chandra, Advs. for the Appellant.
 D          Shekhar Raj Sharma, Dr. Monika Gusain, Advs. for the
       Respondent.
             The Judgment of the Court was delivered by
             K. M. JOSEPH, J.
 E            1. The appellant was accused No. 1 before the Trial Court and
       the appellant before the High Court, which, by the impugned judgement,
       confirmed the judgment of the Trial Court and convicted her under Section
       18 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS
       Act).
 F           2. The prosecution case, briefly put, is as follows:
             On 10.04.2004, ASI-PW7 and other police officials noticed the
       appellant and another accused approaching from 8, Marla Colony carrying
       a bag in their hands. On seeing the police party, the accused allegedly
       turned back and started walking briskly. This aroused suspicion in the
 G     mind of the ASI. He intercepted them. The bag was suspected to contain
       narcotic items. The accused were informed that if they so desired, they
       could have search of the bag in the presence of a Gazetted Officer or
       Magistrate. The appellant desired search by a Gazetted Officer. The
       DSP came to the spot. On his directions, the search was carried out.
       The bag contained on weighment 6 kilograms 300 grams of opium.
 H
             THAN KUNWAR v. STATE OF HARYANA                                   1093
                     [K. M. JOSEPH, J.]

Samples were taken. Thereafter, the formal FIR was registered. On              A
receipt of the FSL report and completing investigation, the charge-sheet
was filed. Prosecution examined 8 witnesses. The appellant denied
incriminating circumstances,in the questioning held under Section 313 of
the Code of Criminal Procedure. As noticed earlier, the High Court has
affirmed the appellant’s conviction.
                                                                               B
       3. We have heard learned Counsel for the appellant.
       THE CONTENTIONS OF THE APPELLANT
       4. It is firstly pointed out that Shri Om Parkash, DSP-Gazetted
Officer, (in whose presence, the search was alleged by the prosecution
was conducted) was present at the same time in respect of another              C
case. In other words, he would submit that in connection with this case
in his testimony, he has stated that he reached the spot at about 01:30
P.M. There is evidence that he remained there till about 03:00 P.M.
However, this is refuted with reference to his testimony which has been
produced in the Court, tending to show that he was present from 12:30          D
P.M. on the very same date in connection with another case and he
remained there till 02:30 P.M. The question is, therefore, as to how the
same person under whose gaze, the search was allegedly carried out,
could be present at two different places at the same time. This brought
under a cloud,the entire prosecution case runs the argument. Next, it is
contended that the contraband, allegedly 6 kilograms 300 grams, was            E
not produced before the Court. This vitiated the conviction. In this regard,
reliance was placed on the following judgments of this Court:
       (1) Jitendra and another v. State of M.P.1;
       (2) Ashok alias Dangra Jaiswal v. State of Madhya Pradesh2; and         F
       (3) Gorakh Nath Prasad v. State of Bihar3.
      5. No doubt, learned Counsel also draws our attention to the
judgment of this Court in State of Rajasthan v. Sahi Ram4, where a
contra view is essentially taken based on the fact that if a large quantity
of contraband is involved, it may not be necessary to produce.                 G


1
  (2004) 10 SCC 562
2
  (2011) 5 SCC 123
3
  (2018) 2 SCC 305
4
  (2019) 10 SCC 649                                                            H
1094             SUPREME COURT REPORTS                          [2020] 3 S.C.R.


 A            6. The next contention urged by learned Counsel for the appellant
       is that, though, it may be true that for searching the bag carried out by
       the accused, it may not be necessary to comply with the requirements of
       Section 50 of the Act but if there is also a personal search, Section 50 is
       attracted. In this context, he drew our attention to the judgment of Bench
       of two learned Judges reported in Dilip and another v. State of M.P.5.
 B
       Therein, it is, inter alia, stated as follows:
                  “16. In this case, the provisions of Section 50 might not have
              been required to be complied with so far as the search of scooter
              is concerned, but, keeping in view the fact that the person of the
              appellants was also searched, it was obligatory on the part of PW
 C            10 to comply with the said provisions. It was not done.”
              7. In fact, when it was pointed out by learned Counsel for the
       appellant that the aforesaid view has been disapproved by a Bench of
       three learned Judges in the decision in State of Punjab v. Baljinder Singh
       and another6, he pointed out that, in fact, a Bench of three learned Judges
 D     has come to rely on the decision by the Bench of two learned Judges in
       the judgment in SK. Raju alias Abdul Haque alias Jagga v. State of West
       Bengal7.
              8. The last contention by the learned Counsel for the appellant is
       that the prosecution has not associated any independent witness in support
 E     of its case. He points out by referring to the judgment itself that there
       were witnesses available but still no witnesses other than the official
       witnesses have been enlisted in support of the prosecution case.
              9. Per contra, learned Counsel for the State would submit that
       the time of arrival of Sh. Om Parkash, Gazetted Officer (DSP) has not
 F     been questioned. He further pointed out that the Court must bear in
       mind the lapse of time from the date of incident to the time of examination
       of the witness.Discrepancy in the timing should not be allowed to discredit
       the testimony of the witness. Still further, he submits that this is also a
       case where contraband articles were recovered from within the bag
 G     carried by the accused. For carrying out search of a bag as distinct from
       the person of the accused, there is no requirement to comply with Section
       50. As regards, the contention that the contraband articles were not
       5
         (2007) 1 SCC 450
       6
         (2019) 10 SCC 473
       7
         (2018) 9 SCC 708
 H
             THAN KUNWAR v. STATE OF HARYANA                                    1095
                     [K. M. JOSEPH, J.]

produced before the Court,it is submitted that it is not the law that the       A
contraband articles must be produced. There is no provision in the Act
which mandates its production. Still further, he would point out that the
appellant has not raised this complaint before the Trial court or the High
Court. There is no dispute raised by Counsel, in fact, that thecontraband
article, as such, is not produced. However, he pointed out that there is
                                                                                B
the FSL report. He supports the judgment of the High Court in regard to
the non-production of any independent witness.
        10. First question which falls for our consideration is whether
there is merit in the contention of the appellant that no independent witness
is produced. In this regard, the testimony of PW-6 is relied upon. In his
cross-examination, he has, inter alia, stated as follows:                       C

             It was a busy place; people were passing thereby. Some
      persons from the public were called but they were reluctant but
      no action was taken. Resident of Kabri was asked to join the
      investigation. Sunil, Gulshan, were also do so. They were there at
      about 1:00 P.M. I did not know prem was Sarpanch or not of the            D
      village. They stopped for about 5 minutes at the spot. Some people
      were called from the nearby shop but I do not know their names
      of the name of the shop.
       11. It is, therefore, the case of the appellant, this is not a case
where independent witnesses could not have been associated with the             E
investigation and the prosecution.
       12. We will deal with this after we also consider the other aspects.
The next aspect which is highlighted, as already noticed, was the
discrepancy brought out in the testimony of the Gazetted Officer, viz.,
the DSP who was allegedly called in by the ASI when upon being                  F
informed about the right under Section 50, the accused demanded
compliance of Section 50 and on a telephone message, the DSP arrived
at the spot. In his deposition, it is true that the Gazetted Officer (DSP)
has deposed, inter alia, as follows:
             He received a telephone call on his mobile phone from ASI.         G
      It was at about 01:10 P.M., he received the call. He reached the
      spot at about 01:30 P.M.
              The ASI examined as PW-7, has stated that the accused
      was apprehended at about 01:00 P.M. and they remained at the
      spot till 04:30 P.M. Notice under Section 50 of the Act, was given        H
1096             SUPREME COURT REPORTS                           [2020] 3 S.C.R.


 A           at about 01:05 P.M. Message to the DSP was sent telephonically
             by about 01:05 P.M. He does not remember from the name of the
             shop from which the telephone call was made. The DSP/Gazetted
             Officer was present in the office at that time. The DSP came at
             about 01:20 P.M. He remained at the spot till 03.00 P.M.
 B            13. The case of the appellant is based on the following testimony
       which was given by the very same, DSP in another case, which has
       been marked in the Trial Court. In the said case (viz., State v. Heera
       Lal), he states, inter alia, as follows:
                    On 10.04.2004, he was posted as DSP Head Quarters,
 C           Panipat. He was present in his office at about 12 Noon. He deposed
             to have received a telephone call from a police officer that notice
             under Section 50 has been served and the person apprehended in
             the said case opted to have a search before a Gazetted Officer.
             He reached the spot at Jattal Road, near railway crossing at 8,
             Marla, Panipat. What is of relevance is that, he stated in his cross-
 D           examination that he remained at the spot upto 02:30 P.M. He
             reached the spot or place of occurrence at about 12:20 PM. The
             distance to the spot from his office was stated to be 2.5 km.
             14. Thus, on the one hand, in this case, the very same officer has
       deposed that he reached the spot at about 01:30 P.M. and the ASI has
 E     deposed that he remained at the spot till 03:00 P.M. The DSP has deposed
       in connection with another case that he reached the spot of that
       investigation in connection with that case at about 12:20 P.M. and
       remained there till 02:30 P.M. The argument, therefore, is that from the
       evidence, the DSP must be present at the same time at two different
 F     places. This clearly rendered prosecution case suspect and benefit of
       doubt should at any rate must go to the accused.
               15. As regards the contention of violation of Section 50 it is based
       on their being personal search of the accused. PW 6, the ASI has inter
       alia stated as follows:
 G                  Personal search of accused was taken by the lady constable
             under the shadow of the jeep. I do not remember… I do not
             remember the direction of the jeep under which the personal search
             of the accused was taken. The lady constable has alone taken
             away the accused for personal search…. I do not remember
             whether at the time of personal search driver of the jeep was in
 H
             the jeep or not.
             THAN KUNWAR v. STATE OF HARYANA                                   1097
                     [K. M. JOSEPH, J.]

      16. Learned Counsel for the appellant drew our attention to the          A
judgment of this Court in Dilip (supra). Therein, a Bench of two learned
Judges held, inter alia, as follows:
             “16. In this case, the provisions of Section 50 might not
      have been required to be complied with so far as the search of
      scooter is concerned, but, keeping in view the fact that the person      B
      of the appellants was also searched, it was obligatory on the part
      of PW 10 to comply with the said provisions. It was not done.”
       17. No doubt we notice the judgment of this Court rendered by a
Bench of three learned Judges in SK. Raju (supra). Therein, the Court
referred to the judgment in Dilip (supra), and thereafter, went on to,         C
inter alia, hold as follows:
             “As soon as the search of the person take place the
      requirement of mandatory compliance with Section 50 is attracted
      irrespective of whether contraband is recovered from the person
      of the detainee or not.”                                                 D
       18. In the said case, the Court went on to hold that requirement of
Section 50 was complied with. However, we notice a later development
in the form of a judgment rendered by a Bench of three learned judges
touching upon the correctness of the view expressed in Dilip (supra) as
contained in paragraph 16 of the judgment.                                     E
      19. In Baljinder Singh (supra), this Court elaborately considered
the matter with reference to the applicability of Section 50 in a case
where there is a personal search also.
      20. This was the case where 7 bags of poppy husk each weighing
34 kg. were found from the vehicle. A personal search of the accused           F
was undertaken after their arrest which did not lead to any recovery of
contraband. The High Court found violation of Section 50 as the personal
search of the accused was not conducted before the Magistrate/Gazetted
Officer and set aside the conviction of the respondent. This Court, in
Baljinder Singh (supra), went on to consider the law laid down by the
                                                                               G
Constitution Bench in Baldev Singh (supra) and, inter alia, held as follows:
             “16. The conclusion (3) as recorded by the Constitution
      Bench in para 57 of its judgment in Baldev Singh [State of
      Punjab v. Baldev Singh, (1999) 6 SCC 172: 1999 SCC (Cri) 1080]
      clearly states that the conviction may not be based “only” on the
                                                                               H
1098            SUPREME COURT REPORTS                           [2020] 3 S.C.R.


 A           basis of possession of an illicit article recovered from personal
             search in violation of the requirements under Section 50 of the
             Act, but if there be other evidence on record, such material can
             certainly be looked into.
                    17. In the instant case, the personal search of the accused
 B           did not result in recovery of any contraband. Even if there was
             any such recovery, the same could not be relied upon for want of
             compliance of the requirements of Section 50 of the Act. But the
             search of the vehicle and recovery of contraband pursuant thereto
             having stood proved, merely because there was non-compliance
             of Section 50 of the Act as far as “personal search” was
 C           concerned, no benefit can be extended so as to invalidate the
             effect of recovery from the search of the vehicle. Any such idea
             would be directly in the teeth of conclusion (3) as aforesaid.
                    18. The decision of this Court in Dilip case [Dilip v. State
             of M.P., (2007) 1 SCC 450 : (2007) 1 SCC (Cri) 377] , however,
 D           has not adverted to the distinction as discussed hereinabove and
             proceeded to confer advantage upon the accused even in respect
             of recovery from the vehicle, on the ground that the requirements
             of Section 50 relating to personal search were not complied with.
             In our view, the decision of this Court in the said judgment in Dilip
 E           case [Dilip v. State of M.P., (2007) 1 SCC 450 : (2007) 1 SCC
             (Cri) 377] is not correct and is opposed to the law laid down by
             this Court in Baldev Singh [State of Punjab v. Baldev Singh,
             (1999) 6 SCC 172 : 1999 SCC (Cri) 1080] and other judgments.”
              21. Having regard to the judgment by the three-Judge Bench,
 F     which directly dealt with this issue, viz., the correctness of the view in
       Dilip (supra) reliance placed by the appellant on paragraph 16 may not
       be available. As already noticed, we are not oblivious of the observation
       which has been made in the other three Judge Bench judgment of this
       Court in SK. Raju (supra), which it appears, was not brought to the
       notice to the Bench which decided the case later in Baljinder Singh
 G     (supra). We notice however that the later decision draws inspiration
       from the Constitution Bench decision in Baldev Singh(supra). We also
       notice that this is not a case where anything was recovered on the alleged
       personal search. The recovery was effected from the bag for which it is
       settled law that compliance with Section 50 of the Act is not required.
 H
            THAN KUNWAR v. STATE OF HARYANA                                   1099
                    [K. M. JOSEPH, J.]

       22. The complaint, of non-production of the seized material, is        A
based on case law of this Court originating with the judgment of this
Court in Jitendra (supra). It is necessary to survey the case law beginning
with Jitendra (supra). In the said case, it is necessary to notice certain
facts. There were panch witnesses for the recovery examined by the
prosecution. They turned hostile. Apart from the prosecution witnesses
                                                                              B
PW7, PW8 and PW6, there was found no independent witness regarding
recovery. It is worthwhile to set out paragraph 6. It reads as under:
             “6. 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 that the lleged quantities
      of charas and ganja were seized from the possession of the              C
      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 panchnama does not discharge the heavy burden             D
      which lies on the prosecution, particularly 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
      panchnama is nothing but a document written by the police officer
      concerned. The suggestion made by the defence in the cross-
      examination is worthy of notice. It was suggested to the                E
      prosecution witnesses that the landlady of the house in collusion
      with the 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 panch witnesses having turned      F
      hostile, the non-examination of the investigating officer and non-
      production of the seized drugs, the conviction under the NDPS
      Act can still be sustained, is far-fetched.”
                                                     (Emphasis supplied)
       23. We notice that this decision came to be followed in the judgment   G
reported in Ashok alias Dangra Jaiswal (supra). Therein, the Court noted,
apart from seizure witness turning hostile, which was found to be not an
uncommon phenomenon, certain other features, asare narrated in
paragraphs 10 and 11, which read as under:
                                                                              H
1100               SUPREME COURT REPORTS                         [2020] 3 S.C.R.


 A                     “10. The seizure of the alleged narcotic substance is shown
                to have been made on 8-3-2005, at 11.45 in the evening. The
                samples taken from the seized substance were sent to the FSL on
                10-3-2005, along with the draft, Ext. P-31. The samples sent for
                forensic examination were, however, not deposited at the FSL on
                that date but those came back to the police station on 12-3-2005
 B
                due to some mistake in the draft or with some query in respect of
                the draft. The samples were sent back to the FSL on 14-3-2005,
                after necessary corrections in the draft and/or giving reply to the
                query and on that date the samples were accepted at the FSL.
                From the time of the seizure in the late evening of 8-3-2005, till
 C              their deposit in the FSL on 14-3-2005, it is not clear where the
                samples were laid or were handled by how many people and in
                what ways.
                       11. The FSL report came on 21-3-2005, and on that basis
                the police submitted charge-sheet against the accused on
 D              31-3-2005, but the alleged narcotic substance that was seized from
                the accused, including the appellant was deposited in the malkhana
                about two months later on 28-5-2005. There is no explanation
                where the seized substance was kept in the meanwhile.”
              24. It is thereafter the Court noted that last but not the least the
 E     narcotic powder was never produced in the trial court as a material
       object and again there was no explanation for its non-production. It was
       found that there was no evidence to connect forensic report with the
       substance that was seized from the possession of the appellant or the
       other accused (see paragraph 12). It was in these circumstances the
       Court drew support from the judgment of this Court in Jitendra (supra).
 F     The appellant has not been able to demonstrate in the facts of this case
       any facts which could be likened to the facts stated in paragraphs 10
       and 11. At least nothing was urged by the learned Counsel for the appellant
       on these lines.
              25. Next judgment to be noticed is Vijay Jain v. State of Madhya
 G     Pradesh8. The first feature we notice is that the contention about the
       contraband not being produced was raised before the trial court (see
       paragraph 5). It was a case where a suitcase was produced as containing
       the alleged contraband. In regard to the suitcase, the evidence of PW11

       8
           (2013) 14 SCC 527
 H
               THAN KUNWAR v. STATE OF HARYANA                                1101
                       [K. M. JOSEPH, J.]

was elaborately considered. It was found that the only evidence before        A
the Court was that in the suitcase there was only a big pack wrapped in
cloth and cloth was torn and there was bluecolour polythene in which
there were clothes. The evidence of PW11 did not reveal any brown
sugar being found in the suitcase. No doubt, the Court referred to two
samples being prepared. Then the Court noted that PW3 has stated
                                                                              B
before the court that those samples were not prepared in his presence.
PW2 had stated that the witnesses were not taken to the site where the
materials were seized. In Gorakh Nath Prasad (supra), the Court noted
that neither the seized Ganja nor the sample drawn at the time of seizure
was produced. The investigating officer-PW7 deposed there were no
MR No. on the sealed material. He was also not sure whether the seized        C
material had been kept at the Malkhana and also that it had not been
produced in the Court. The independent witness with regard to the search
and seizure, PW2 and PW3 turned hostile. In these circumstances, it
appears the court went on to hold that non-production of the seized
material was therefore fatal to the prosecution case. The Court thereafter
                                                                              D
referred to the judgment of Ashok (supra) following Jitendra(supra).
Lastly, we notice the judgment of this Court in Mohinder Singh v. State
of Punjab9. It was rendered by a Bench of three learned Judges. It was
a case where the Trial Court had acquitted the appellant noticing, inter
alia, that no order of the Magistrate was proved to show that the case
property was produced before the Court. The High Court went on to             E
reverse the acquittal and convicted the appellant. It is worthwhile to
notice what this Court had said in the facts of this case:
                “10. So far as the contention regarding production of the
         contraband seized from the accused, in his evidence, Harbhajan
         Singh (PW 3) stated that on 1-5-1998, he produced the sample         F
         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 lodged by
         him to the Malkhana on 1-5-1998 itself. Baldev Singh (PW 5) the      G
         then Malkhana incharge 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

9
    (2018) 18 SCC 540                                                         H
1102            SUPREME COURT REPORTS                           [2020] 3 S.C.R.


 A           the relevant entry in Register No. 19 as to deposit of the case
             property in the Malkhana. 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.
 B                  11. After referring to the oral evidence of Joginder Singh
             (PW 2) 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
 C           production of the case property before the Magistrate was not
             trustworthy and not acceptable. 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 that the contraband was produced before the Magistrate
 D           cannot form the basis to record the conviction.”
              26. Finally, it is necessary also to refer to paragraph 12 regarding
       the observation made therein. It would assume relevance, which reads
       as follows:
                    “12. For proving the offence under the NDPS Act, it is
 E           necessary for the 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
 F           destruction of the contraband.”
              27. For determining the exact provision applicable under the law,
       viz., whether the offence relates to commercial quantity or the other
       categories, it may be necessary.
              28. In the facts of this case we, however, notice certain features.
 G     Before the Trial Court, the contention as such that not seen raised about
       the non-production of the contraband articles. We may also however
       refer to the judgment of this Court in Sahi Ram (supra). This was a case
       where the vehicle was searched, during which 7 bags of poppy straw,
       the gross weight being 233 kg., were found behind the driver’s seat.
       Samples were taken. The High court in appeal by the respondent found
 H
            THAN KUNWAR v. STATE OF HARYANA                                  1103
                    [K. M. JOSEPH, J.]

that only 2 sample packets and one bag of poppy straw weighing 2.5 kg.       A
were produced and relying upon the case law which we have referred
to, acquitted the respondent. The Court also noted paragraph 9 of the
judgment in Jitendra(supra) where the court observed, taking the
cumulative effect of all circumstances, it was not sufficient to bring
home the charge. The Court also referred to the judgment of this Court
                                                                             B
in Mohinder Singh (supra).
       29. The Court also went to hold in Sahi Ram (supra) that if seizure
is otherwise proved on record and it is not even doubted or disputed, it
need not be placed before the Court. The Court further held that if the
seizure is otherwise proved what is required to be proved is the fact that
samples taken out of a contraband are kept intact. This Court held as        C
follows:
      “15. It is true that in all the aforesaid cases submission was
      advanced on behalf of the accused that failure to produce
      contraband material before the Court ought to result in acquittal
      of the accused. However, in none of the aforesaid cases the said       D
      submission singularly weighed with this Court to extend benefit of
      acquittal only on that ground. As is clear from the decision of this
      Court in Jitendra [Jitendra v. State of M.P., (2004) 10 SCC 562:
      2004 SCC (Cri) 2028], apart from the aforesaid submission other
      facets of the matter also weighed with the Court which is evident      E
      from paras 7 to 9 of the decision.
      Similarly in Ashok [Ashok v. State of M.P., (2011) 5 SCC 123 :
      (2011) 2 SCC (Cri) 547], the fact that there was no explanation
      where the seized substance was kept (para 11) and the further
      fact that there was no evidence to connect the forensic report         F
      with the substance that was seized, (para 12) were also relied
      upon while extending benefit of doubt in favour of the accused.
      Similarly, in Vijay Jain [Vijay Jain v. State of M.P., (2013) 14
      SCC 527 : (2014) 4 SCC (Cri) 276] , the fact that the evidence on
      record did not establish that the material was seized from the
      appellants, was one of the relevant circumstances. In the latest       G
      decision of this Court in Vijay Pandey [Vijay Pandey v. State
      of U.P., (2019) 18 SCC 215 : 2019 SCC Online SC 942] , again
      the fact that there was no evidence to connect the forensic report
      with the substance that was seized was also relied upon to extend
      the benefit of acquittal.                                              H
1104             SUPREME COURT REPORTS                            [2020] 3 S.C.R.


 A                  16. It is thus clear that in none of the decisions of this Court,
             non-production of the contraband material before the court has
             singularly been found to be sufficient to grant the benefit of
             acquittal.
             xxx                          xxx               xxx               xxx
 B                  18. If the seizure of the material is otherwise proved on
             record and is not even doubted or disputed, the entire contraband
             material need not be placed before the court. If the seizure is
             otherwise not in doubt, there is no requirement that the entire
             material ought to be produced before the court. At times the
 C           material could be so bulky, for instance as in the present material
             when those 7 bags weighed 223 kg that it may not be possible and
             feasible to produce the entire bulk before the court. If the seizure
             is otherwise proved, what is required to be proved is the fact that
             the samples taken from and out of the contraband material were
             kept intact, that when the samples were submitted for forensic
 D           examination the seals were intact, that the report of the forensic
             experts shows the potency, nature and quality of the contraband
             material and that based on such material, the essential ingredients
             constituting an offence are made out.”
              30. In the facts of this case, no doubt the contraband article weighed
 E     6 kg 300 gms. A perusal of the judgment of the Trial Court does not
       appear to suggest the appellant had taken the contention regarding non-
       production of the contraband before the trial Court. This contention as
       such is not seen as taken before the High Court. This is a case where
       the sample was produced. There is no argument relating to the tampering
 F     with the seal. We further notice that in the deposition of the investigating
       officer (PW7), he has stated as follows:
                    “The case property is Exhibit P1, sampleis Exhibit P2, sample
             seal is Exhibit P3 and the bag in which the case property was
             recovered from the possession of the accused present in the Court
 G           is Exhibit P4.”
             31. In the facts of this case, we have no hesitation to reject the
       contention of the appellant.
              32. Next aspect, which we consider is, whether the conviction of
       the appellant made by two courts requires interference on the ground
 H     that independent witnesses were not associated with the investigation,
                THAN KUNWAR v. STATE OF HARYANA                                1105
                        [K. M. JOSEPH, J.]

seizure and recovery. We have noticed the evidence which is referred           A
to by the appellant to criticize the impugned judgment on this score. Two
courts have reposed confidence in the deposition of the prosecution
witnesses. The Investigation Officer-PW7, when examined, has stated
as follows:
              “…At the time of apprehension of accused none from the           B
       public was there. There were shops but there was no residential
       house. Residential colony is at some distance. No woman from
       the locality was called. Some respectables were tried to be called.
       I do not remember the names of the said persons. Prem Singh
       son of Raja Ram resident of Kahri, Sunil son of Ram Mehar
       resident of Panipat, Gushan Kumar son of Gainda Ram resident            C
       of 8 Marla Colony, Panipat were asked to do so. It was about 2
       P.M. DSP had also arrived. The aforesaid persons remained with
       us for 5/10 minutes. They had showed their inability to such a
       nature that I did not think it proper to take legal action against
       them. No shop keeper was called…”                                       D
      33. In the light of this we do not think that a case has been made
for overturning the verdict of guilt returned against the appellant.
      34. In the circumstances, as noted above, though there appears to
be doubt created about whether the DSP was present,upon being called
by PW7 having regard to the testimony of the DSP in the other case, in         E
view of the fact that the contraband articles were in fact recovered
upon search of the bag, and bearing in mind the view taken by this Court
in Baljinder Singh (supra),we do not find merit in the argument of the
appellant.
       35. Lastly, the learned Counsel for the appellant made a fervent        F
plea in this case that should his contentions not be found acceptable, the
Court may direct that appellant may not suffer further incarceration in
the State of Haryana but may consider her being housed in a jail in the
State of Madhya Pradesh where she would have access to her family
members. This is a matter which we leave upon to the appellant to seek         G
appropriate relief. Subject to the same, the appeal stands dismissed.
Since the appellant is on bail, her bail bond shall stand cancelled.


Devika Gujral                                              Appeal dismissed.
                                                                               H