Tuesday, 30 July 2019

Whether accused can be convicted under NDPS Act if prosecution has failed to correlate sample seized and lab report?

The failure of the prosecution in the present case to relate
the seized sample with that seized from the appellant makes the
case no different from failure to produce the seized sample
itself. In the circumstances the mere production of a laboratory
report that the sample tested was narcotics cannot be
conclusive proof by itself. The sample seized and that tested
have to be corelated.
The observations in Vijay Jain vs. State
of Madhya Pradesh, (2013) 14 SCC 527, as follows are
considered relevant :
“10. On the other hand, on a reading of this Court's
judgment in Jitendra's case, we find that this Court
has taken a view that in the trial for an offence
under the NDPS Act, it was necessary for the
prosecution to establish by cogent evidence that the
alleged quantities of the contraband goods were
seized from the possession of the accused and the
best evidence to prove this fact is to produce during
the trial, the seized materials as material objects
and where the contraband materials alleged to have
been seized are not produced and there is no
explanation for the failure to produce the
contraband materials by the prosecution, mere oral

evidence that the materials were seized from the
accused would not be sufficient to make out an
offence under the NDPS Act particularly when the
panch witnesses have turned hostile. Again, in the
case of Ashok (supra), this Court found that the
alleged narcotic powder seized from the possession
of the accused was not produced before the trial
court as material exhibit and there was no
explanation for its nonproduction
and this Court
held that there was therefore no evidence to
connect the forensic report with the substance that
was seized from the possession of the appellant.”

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s).1143 OF 2019

VIJAY PANDEY  Vs STATE OF UTTAR PRADESH 

NAVIN SINHA, J.
Dated:July 30, 2019.

The appellant assails his conviction and sentence under
Sections 8 and 15 of the of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred as “the NDPS Act”)
for 15 years along with fine of Rs.1,50,000/under
Section 31
of the NDPS Act.
2. The appellant is stated to have been carrying a plastic
flour packet in his right hand leading to recovery of 10 kgs. of
opium. No independent witness from the locality was included
in the investigation and all the witnesses are police officials
only.

3. Learned counsel for the appellant alleging false implication
contends that he was apprehended as he stepped out of his
house. There is no explanation for the nonavailability
of any
independent witness in a residential locality. There is noncompliance
with Section 50 of the NDPS Act. The prosecution
failed to prove that the sample produced in court was the same
as seized from the appellant.
4. Learned counsel for the State submits that the appellant
has a previous history of two convictions under the NDPS Act
and he is a habitual offender. Section 50 has been complied
with. The Trial Court has recorded its satisfaction that the
sample produced in court was the same seized from the
appellant. In any event it has caused no prejudice to the
appellant.
5. We have considered the respective submissions. The
seizure was at 06.40 AM at the door step of the appellant. We

find it difficult to believe that in a rural residential locality, the
police were unable to find a single independent witness. No
name of any person has been mentioned who may have declined
to be a witness. The High Court, despite noticing the absence of
any recovery memo prepared at the time of search and seizure
under Section 50 of the NDPS Act, opined that the deposition of
the police witness to that effect was sufficient compliance.
Though the Laboratory Report was obtained, but the identity of
the sample stated to have been seized from the appellant was
not conclusively established by the prosecution.
6. The accused had raised an objection regarding the sample
produced in court not having been established as seized from
him. The Trial Court opined that “the malkhanas in the State of
Uttar Pradesh were in miserable condition and strange and
objectionable thing come to the eyes”. The plastic packet
produced was of very low quality and the quality of ink used in
writing the name of the accused on the same was not
decipherable and may have got erased with passage of time.

Nonetheless, since the allegations against the appellant had
been proved by the witnesses, the failure to conclusively identify
the sample produced as having been seized from the appellant
was inconsequential. Unfortunately, the High Court did not
deal with this aspect of the matter at all. The fact of an earlier
conviction may be relevant for the purpose of sentence but
cannot be a ground for conviction per se.
7. In Mohan Lal vs. State of Punjab, AIR 2018 SC 3853, it
was observed:
“10. Unlike the general principle of criminal
jurisprudence that an accused is presumed innocent
unless proved guilty, the NDPS Act carries a reverse
burden of proof under Sections 35 and 54. But that
cannot be understood to mean that the moment an
allegation is made and the F.I.R. recites compliance
with statutory procedures leading to recovery, the
burden of proof from the very inception of the
prosecution shifts to the accused, without the
prosecution having to establish or prove anything
more. The presumption is rebuttable. Section 35(2)
provides that a fact can be said to have been proved
if it is established beyond reasonable doubt and not
on preponderance of probability. The stringent
provisions of the NDPS Act, such as Section 37, the
minimum sentence of ten years, absence of any
provision for remission, do not dispense with the
requirement of the prosecution to establish a prima
facie case beyond reasonable doubt after

investigation, only after which the burden of proof
shall shift to the accused. The case of the
prosecution cannot be allowed to rest on a
preponderance of probabilities.”
8. The failure of the prosecution in the present case to relate
the seized sample with that seized from the appellant makes the
case no different from failure to produce the seized sample
itself. In the circumstances the mere production of a laboratory
report that the sample tested was narcotics cannot be
conclusive proof by itself. The sample seized and that tested
have to be corelated.
The observations in Vijay Jain vs. State
of Madhya Pradesh, (2013) 14 SCC 527, as follows are
considered relevant :
“10. On the other hand, on a reading of this Court's
judgment in Jitendra's case, we find that this Court
has taken a view that in the trial for an offence
under the NDPS Act, it was necessary for the
prosecution to establish by cogent evidence that the
alleged quantities of the contraband goods were
seized from the possession of the accused and the
best evidence to prove this fact is to produce during
the trial, the seized materials as material objects
and where the contraband materials alleged to have
been seized are not produced and there is no
explanation for the failure to produce the
contraband materials by the prosecution, mere oral

evidence that the materials were seized from the
accused would not be sufficient to make out an
offence under the NDPS Act particularly when the
panch witnesses have turned hostile. Again, in the
case of Ashok (supra), this Court found that the
alleged narcotic powder seized from the possession
of the accused was not produced before the trial
court as material exhibit and there was no
explanation for its nonproduction
and this Court
held that there was therefore no evidence to
connect the forensic report with the substance that
was seized from the possession of the appellant.”
9. In Ashok alias Dangra Jaiswal vs. State of Madhya
Pradesh, (2011) 5 SCC 123, it was observed:
“12. Last but not the least, the alleged narcotic
powder seized from the possession of the accused,
including the appellant was never produced before
the trial court as a material exhibit and once again
there is no explanation for its nonproduction.
There is, thus, no evidence to connect the forensic
report with the substance that was seized from the
possession of the appellant or the other accused.”
10. We are, therefore, unable to uphold the conviction of the
appellant. The conviction by the Trial Court and upheld by the
High Court are unsustainable and are accordingly set aside.
The appellant is acquitted. He is directed to be released
forthwith unless wanted in any other case.

11. The appeal is allowed.
.……………………….J.
(Ashok Bhushan)
………………………..J.
(Navin Sinha)
New Delhi,
July 30, 2019.

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