UNION OF INDIA versus JAROOPARAM on 31 January 2018

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[2018] 1 S.C.R. 618

SUPREME COURT REPORTS[2018] 1 S.C.R. 618

[2018] 1 S.C.R.

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UNION OF INDIA

v.

JAROOPARAM

(Criminal Appeal Nos. 741-742 of 2011)

BJANUARY 31, 2018

[N. V. RAMANA AND S. ABDUL NAZEER, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985 –s.52A – Disposal of seized narcotic drugs – Allegation of recoveryof 7.2 kg of contraband material (opium) from respondent-accused –CConviction under s.8/18 r/w s.29 – Acquittal by High Court on theground that the bulk quantity of the seized case property was notdisposed of by the Executive Magistrate; that statement of accusedunder s.67 was recorded in police custody and the signature ofaccused was falsely obtained on blank papers – Held: In theDimpugned order, the High Court has observed that the order of theExecutive Magistrate did not show that the property was disposedof, but it was recorded therein that after the preparation of thesamples, the samples and the bulk quantity of property were returnedto the investigating officer – Thus, it is apparent that the propertywas not disposed of – Omission on the part of the prosecution toEproduce the bulk quantity of seized opium created doubt on thegenuineness of the samples drawn from the allegedly seizedcontraband – A bare perusal of the record showed that at no pointof time any prayer was made by the prosecution for destruction ofthe said opium or disposal thereof otherwise – Even no notice wasFgiven to the accused before such alleged destruction/disposal –High Court committed no error in disbelieving the prosecution storyby arriving at the conclusion that at the trial, the bulk quantities ofcontraband were not exhibited to the witnesses at the time ofadducing evidence – The independent witnesses also turned hostileand did not support its case – It is manifest from the record that theyGhad simply put their signatures on the papers at the whims ofinvestigating agency – The version of prosecution that the accusedvoluntarily made the confessional statement cannot be believed inthe light of admission by Narcotics Officer (PW 5), a key prosecutionwitness, that the statement of accused under s.67 of the Act wasHrecorded while he was in his custody and the time was not mentioned on the statements – This fact was further corroborated with thestatement of PW 6 also that the statement of accused was recordedafter arrest and while in custody – Thus, it cannot be said that thestatement of the accused confessing the crime was of voluntarilymade under the provisions of the Act – Interference with the orderof High Court not called for.

Dismissing the appeal, the Court

HELD: 1. From the proceedings of Executive Magistrate,it is crystal clear that the remaining seized stuff was not disposedof by the Executive Magistrate. The contraband stuff as also thesamples sealed as usual were handed over physically to theInvestigating Officer (PW 6). Also the trial Court in its judgmentspecifically passed instructions to preserve the seized propertyand record of the case in safe custody, as the co-accused wasabsconding. In such situation, it assumes importance that therewas nothing on record to show as to what happened to theremaining bulk quantity of contraband. The absence of properexplanation from the prosecution significantly undermines its caseand reduces the evidentiary value of the statements made by thewitnesses. [Para 9] [624-B-D]

2. Omission on the part of the prosecution to produce thebulk quantity of seized opium would create a doubt in the mind ofCourt on the genuineness of the samples drawn from the allegedlyseized contraband. However, the simple argument that the samehad been destroyed, cannot be accepted as it is not clear that onwhat authority it was done. Law requires that such an authoritymust flow from an order passed by the Magistrate. A bare perusalof the record shows that at no point of time any prayer had beenmade by the prosecution for destruction of the said opium ordisposal thereof otherwise. The only course of action theprosecution should have resorted to is to for its disposal is toobtain an order from the competent Court of Magistrate asenvisaged under Section 52A of the Act. It is explicitly madeunder the Act that as and when such an application is made, theMagistrate may, as soon as may be, allow the application.[Para10] [624-E-G]

3. There is no denial of the fact that the prosecution hasnot filed any such application for disposal/destruction of the A

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Aallegedly seized bulk quantity of contraband material nor any suchorder was passed by the Magistrate. Even no notice has beengiven to the accused before such alleged destruction/disposal.The trial Court appears to have believed the prosecution storyin a haste and awarded conviction to the respondent withoutwarranting the production of bulk quantity of contraband. But,Bthe High Court committed no error in dealing with this aspect ofthe case and disbelieving the prosecution story by arriving at theconclusion that at the trial, the bulk quantities of contraband werenot exhibited to the witnesses at the time of adducing evidence.[Para 11] [624-H; 625-A-B]

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4. Turning to the other discrepancies in the prosecutioncase, PWs 1 and 2 the independent witnesses portrayed by theprosecution have turned hostile and did not support its case. Itis manifest from the record that they had simply put theirsignatures on the papers at the whims of investigating agency.

DAnother aspect that goes in favour of the accused is that, theversion of prosecution that the respondent voluntarily made theconfessional statement cannot be believed in the light ofadmission by Narcotics Officer (PW 5), a key prosecution witness,that the statement of accused-respondent under Section 67 ofthe Act was recorded while he was in his custody and the timeEwas not mentioned on the statements. This fact further getscorroborated with the statement of PW 6 also that the statementof accused was recorded after arrest and while in custody. Thus,it cannot be said that the statement of the accused confessingthe crime was of voluntarily made under the provisions of theFAct. [Para 12] [625-C-F]

Noor Aga v. State of Punjab & Anr. (2008) 16 SCC417 : [2008] 10 SCR 379 – relied on.

Case Law Reference

G[2008] 10 SCR 379relied onPara 10

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 741-742 of 2011.

From the Judgment and Order dated 23.02.2010 of the High Courtof Madhya Pradesh, Indore Bench in Criminal Appeal Nos. 621 and 772Hof 2008.

K. Radhakrishnan, Sr. Adv, Ms. Sadhana Sandhu, Ms. KiranBhardwaj, B. V. Balaramdas, Manish Vashishtha, Advs. for theAppellant.

Sushil Kumar Jain, Sr. Adv, Puneet Jain, Harsh Jain, AbhinavGupta, Ms. Christi Jain (For Ms. Pratibha Jain), Advs. for the Respondent.

The Judgment of the Court was delivered by

N. V. RAMANA, J. 1. At the outset, it may be noted that CriminalAppeal No. 742 of 2011 has already been dismissed as abated by thisCourt’s order dated 11[th] April, 2016 passed by the Hon’ble Judge inChamber. We are now called upon to deal with Criminal Appeal No. 741of 2011 only which is directed against the Judgment and Order dated23[rd] February, 2010 passed by the High Court of Madhya Pradesh, Benchat Indore in Criminal Appeal No. 621 of 2008. By the said judgment, theHigh Court allowed the appeal of the respondent herein and acquittedhim of the charges leveled against him under Section 8/18 (B) read withSection 29 of the Narcotic Drugs and Psychotropic Substances Act,1985 (hereinafter referred to as ‘the Act’).

2. Brief history of the case as emanated from the prosecutionstory is that upon receiving information from an informant on 11[th] May,2004 PW7—P.K. Sinha (Inspector) laid a trap and intercepted threeaccused persons including the respondent herein at Bhilkhanda Squareand found 7.2 kg of contraband material (opium) in the possession of theaccused—respondent. Two samples were then prepared weighing 30grams each and marked as ‘A1’ and ‘A2’ and the remaining materialwas sealed and marked as ‘A’. The accused confessed to have committedthe offence and after recording his statement a report has been submittedto the Superintendent who appointed Harvindar Singh (PW 6) asInvestigating Officer. After depositing the seized contraband at Malkhana,the samples were sent for chemical examination and a complaint underSections 8/18 and 29 of the Act against the accused has been filed.Taking cognizance of the Complaint, the Special Judge, Neemuch by hisjudgment dated 21[st] April, 2008 convicted the accused and sentencedhim to suffer rigorous imprisonment for a period of ten years and to paya fine of Rs.1,00,000/-.

3. Agitating the judgment of the learned trial Judge, the accusedfiled appeal before the High Court. By the impugned judgment, the HighCourt observed that the bulk quantity of the seized case property was AB

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Anot disposed of by the Executive Magistrate, the statement of the accusedunder Section 67 of the Act was recorded when the accused was inpolice custody after arrest and the signature of the accused were falselyobtained on blank papers and hence his statement cannot be taken asthat of voluntarily made under the provisions of the Act. Therefore, theHigh Court allowed the appeal of the accused and acquitted him of theBcharges. The aggrieved State is in appeal before us.

4. We have heard learned senior counsel appearing for the Stateand learned counsel for the accused—appellant as well, and carefullygone through the material on record.C5. Learned senior counsel for the State centered his argumentson the provisions of Section 52A of the Act to submit that on 14[th] October,2004 after submitting the seized case contraband property to theExecutive Magistrate, it was found that two polythene packets contained4 kg and 3.2 kg of opium respectively and from them 30-30 grams eachof two packets have been prepared and marked as A3 and A4 andDsealed. Before opening the seized stuff and after preparing the samples,photographs were taken and the Executive Magistrate has duly signedwith seal on all the sealed packets and samples. The case property wasaccordingly destroyed under the provisions of the Act and the inventoryand photographs were submitted during trial which form primary evidenceEunder the Act, but the High Court failed to consider them to be under theprovisions of law. Learned senior counsel further submitted that the HighCourt committed serious error by simply believing the testimony of theaccused that his signatures were obtained on blank papers forcibly,though there was enormous evidence in support of the prosecution case.F6. Learned counsel for the accused, on the other hand, supportedthe impugned judgment and submitted that the High Court considered allaspects of the case in a prudent manner under the established provisionsof law, particularly Section 52-A of the Act, and then only reached to theconclusion that the prosecution has failed to prove the case against theaccused—respondent.G7. Having considered the rival submissions and the material onrecord, at the outset, we think it appropriate to quote here what the HighCourt has observed in para 9 of the impugned judgment:

“In the proceedings under Section 52-A of the Act, HarvindarSingh, PW-6 has deposed that he got the property of this caseH

disposed of by the Executive Magistrate of Singoli by order sheetEx.P/28. At that time photos of the seized property were taken,which are Ex-P/34 and the same was kept in the envelope Ex. P/29. The order sheet Ex. P/28 shows that property was notdisposed of by the Executive Magistrate and Tehsildar, Singoli,but after the properation of the samples A-3, A-4 and B-3, B-4 and C-3, C-4, the above samples and the bulk quantity ofthe property was returned to the presenting officer HarvindarSingh, Inspector of CBN. On this order sheet, there is receipt ofarticles by Inspector Harvindar Singh. In this way, only the sampleswere prepared by the Executive Magistrate and Tehsildar, Singoli,but actual property was not disposed of. In para 79 of the impugnedjudgment, it has also been ordered by the Court that the propertybe kept pending as co-accused is absconding. This also showsthat the property was not disposed of. It was not produced at thetime of the trial in the Court. In the absence of the production ofthe bulk quantity of the opium, it cannot be proved that thesamples Articles—A, B, C, D, E, F were prepared from thebulk quantity”.

8. What transpires from the above quoted paragraph is that aftertaking out two samples of 30 grams each, the Executive Magistratereturned the entire remaining seized property to the InvestigatingOfficer—PW 6. To further ascertain the same, we have also carefullyperused the exact content of the proceedings dated 14[th] October, 2004(Annexure P-5) recorded by the Executive Magistrate, Singoli Tappa.The proceedings recorded as far as the respondent herein is concerned,read thus:

PROCEEDINGS

14.10.2004 : Case submitted. Shri Harvinder Singh, Inspector(Investigating Officer), Narcotics Bureau, Singoli has submittedthree sealed packets of seized stuff in Crime No. 1/2004 underSection 8/18 and 8/29 of the NDPS Act, 1985. These packetswere marked A, B and C and the details are given as under;

(1) A : On the packet marked “A” it was indicated that packetcontains 7.200 kgs opium seized from Jaroopram S/O GangaRam Bishnoi. On opening the packet, transparent polythenebag was found, in which again two polythene packets found.One polythene indicated 4.000 kgs and the second one 3.200

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Akgs opium respectively. A composite sample of 30-30 gramseach have been taken from the two packets and kept in asmall plastic polythene and marked A3 and A4 and sealed.The remaining seized stuff and samples sealed as usual arehanded over to the presenting Officer Shri Harvinder Singh,Inspector.B

9. From the above proceedings, it is crystal clear that the remainingseized stuff was not disposed of by the Executive Magistrate. Thecontraband stuff as also the samples sealed as usual were handed overphysically to the Investigating Officer Harvinder Singh (PW 6). Also thetrial Court in its judgment specifically passed instructions to preserve theCseized property and record of the case in safe custody, as the co-accusedBhanwarlal was absconding. The trial Court more specifically instructedto put a note with red ink on the front page of the record for its safecustody. In such situation, it assumes importance that there was nothingon record to show as to what happened to the remaining bulk quantity ofDcontraband. The absence of proper explanation from the prosecutionsignificantly undermines its case and reduces the evidentiary value ofthe statements made by the witnesses.

10. Omission on the part of the prosecution to produce the bulkquantity of seized opium would create a doubt in the mind of Court onEthe genuineness of the samples drawn and marked as A, B, C, D, E, Ffrom the allegedly seized contraband. However, the simple argumentthat the same had been destroyed, cannot be accepted as it is not clearthat on what authority it was done. Law requires that such an authoritymust flow from an order passed by the Magistrate. On a bare perusal ofthe record, it is apparent that at no point of time any prayer had beenFmade by the prosecution for destruction of the said opium or disposalthereof otherwise. The only course of action the prosecution should haveresorted to is to for its disposal is to obtain an order from the competentCourt of Magistrate as envisaged under Section 52A of the Act. It isexplicitly made under the Act that as and when such an application isGmade, the Magistrate may, as soon as may be, allow the application [Seealso :Noor AgaVs State of Punjab & Anr.(2008) 16 SCC 417].

11. There is no denial of the fact that the prosecution has not filedany such application for disposal/destruction of the allegedly seized bulkquantity of contraband material nor any such order was passed by theHMagistrate. Even no notice has been given to the accused before such

alleged destruction/disposal. It is also pertinent here to mention that thetrial Court appears to have believed the prosecution story in a haste andawarded conviction to the respondent without warranting the productionof bulk quantity of contraband. But, the High Court committed no errorin dealing with this aspect of the case and disbelieving the prosecutionstory by arriving at the conclusion that at the trial, the bulk quantities ofcontraband were not exhibited to the witnesses at the time of adducingevidence.

12. Turning to the other discrepancies in the prosecution case,PWs 1 and 2 the independent witnesses portrayed by the prosecutionhave turned hostile and did not support its case. It is manifest from therecord that they had simply put their signatures on the papers at thewhims of investigating agency. Another aspect that goes in favour of theaccused is that, the version of prosecution that the respondent voluntarilymade the confessional statement cannot be believed in the light ofadmission by Narcotics Officer (PW 5), a key prosecution witness, thatthe statement of accused—respondent under Section 67 of the Act wasrecorded while he was in his custody and the time was not mentioned onthe statements. This fact further gets corroborated with the statementof PW 6 also that the statement of accused was recorded after arrestand while in custody. Thus, it cannot be said that the statement of theaccused confessing the crime was of voluntarily made under theprovisions of the Act.

13. For the aforesaid reasons, we are in complete agreement withthe judgment of the High Court. We do not find any reason to interferewith the well reasoned judgment. The appeal lacks merit and is dismissed.Pending applications, if any, shall also stand disposed of.

Devika Gujral

Appeal dismissed.

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