caselaws.org
Supreme Court of India
Than Kunwar vs The State Of Haryana on 2 March, 2020Author: K.M. Joseph
Bench: Sanjay Kishan Kaul, K.M. Joseph
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2172 OF 2011
THAN KUNWAR … APPELLANT
VERSUS
STATE OF HARYANA … RESPONDENT
J U D G M E N T
K.M. JOSEPH, J.
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).
2. The prosecution case, briefly put, is as follows:
On 10.04.2004, ASI-PW7 and other police
officials noticed the appellant and another
Signature Not Verified
accused approaching from 8, Marla Colony
Digitally signed by
ASHA SUNDRIYAL
Date: 2020.03.02
16:21:38 IST
Reason:
carrying a bag in their hands. On seeing the
1
police party, the accused allegedly turned back
and started walking briskly. This aroused
suspicion in the 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. Samples were taken. Thereafter, the
formal FIR was registered. On 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.
3. We have heard learned Counsel for the appellant.
2
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
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 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
not produced before the Court. This vitiated the
3
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
(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.
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
1 (2004) 10 SCC 562
2 (2011) 5 SCC 123
3 (2018) 2 SCC 305
4 (2019) 10 SCC 649
4
Bench of two learned Judges reported in Dilip and
another v. State of M.P.5. 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 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 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 of its
5 (2007) 1 SCC 450
6 (2019) 10 SCC 473
7 (2018) 9 SCC 708
5
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 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 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
produced before the Court, it is submitted that it is
not the law that the contraband articles must be
produced. There is no provision in the Act which
mandates its production. Still further, he would
6
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
the contraband article, as such, is not produced.
However, he pointed out that there is 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:
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 village.
They stopped for about 5 minutes at the
spot. Some people were called from the
7
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 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 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. It was at about
01:10 P.M., he received the call. He
reached the spot at about 01:30 P.M.
8
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 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.
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, Panipat. He was present in
his office at about 12 Noon. He deposed to
have received a telephone call from a
9
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-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 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
10
time at two different 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:
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 the jeep or not.
16. Learned Counsel for the appellant drew our
attention to the judgment of this Court in
Dilip (supra). Therein, a Bench of two learned
Judges held, inter alia, as follows:
11
“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 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, 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.”
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
12
Dilip (supra) as contained in paragraph 16 of the
judgment.
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 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 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 basis of possession of an illicit
13
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 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 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, 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
case [Dilip v. State of M.P., (2007) 1 SCC
450 : (2007) 1 SCC (Cri) 377] is not
14
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, 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 (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.
15
22. The complaint, of non-production of the seized
material, is 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 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
alleged quantities of charas and ganja
were seized from the possession 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 panchnama does
not discharge the heavy burden 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
16
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
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 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 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, as are narrated in paragraphs 10 and 11,
which read as under:
“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
17
were, however, not deposited at the FSL on
that date but those came back to the
police station on 12-3-2005 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 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 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 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
18
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). 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 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 was
elaborately considered. It was found that the only
evidence before the Court was that in the suitcase
there was only a big pack wrapped in cloth and cloth
was torn and there was blue colour polythene in which
there were clothes. The evidence of PW11 did not
8 (2013) 14 SCC 527
19
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
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 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 referred to the judgment of Ashok
(supra) following Jitendra (supra). Lastly, we
notice the judgment of this Court in Mohinder Singh
20
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 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 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 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 the
relevant entry in Register No. 19 as to
9 (2018) 18 SCC 540
21
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.
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 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 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 necessary for the
prosecution to establish the quantity of
22
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 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. 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 that only 2 sample
packets and one bag of poppy straw weighing 2.5 kg.
were produced and relying upon the case law which we
have referred to, acquitted the respondent. The
23
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 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
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 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],
24
apart from the aforesaid submission other
facets of the matter also weighed with the
Court which is evident 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 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
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.
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.
25
xxx xxx xxx xxx
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 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 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 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
26
the sample was produced. There is no argument
relating to the tampering 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,
sample is 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 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 that independent
witnesses were not associated with the investigation,
seizure and recovery. We have noticed the evidence
which is referred 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:
27
“…At the time of apprehension of
accused none from the 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 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…”
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
28
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 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 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 appropriate relief. Subject
to the same, the appeal stands dismissed. Since the
appellant is on bail, her bail bond shall stand
cancelled.
…………………..J.
(ASHOK BHUSHAN)
29
………………….
.J.
(K.M. JOSEPH)
NEW DELHI,
MARCH 02, 2020.
30
Comments