Reportable: Signature Not Verified
Reportable: Signature Not Verified
Reportable: Signature Not Verified
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s).1143 OF 2019
(arising out of SLP(Crl.)No.1273 of 2019)
VIJAY PANDEY ...APPELLANT(S)
VERSUS
STATE OF UTTAR PRADESH ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
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.
flour packet in his right hand leading to recovery of 10 kgs. of
opium. No independent witness from the locality was included
Signature Not Verified
Digitally signed by
SANJAY KUMAR
Date: 2019.07.30
17:08:19 IST
Reason: in the investigation and all the witnesses are police officials
only.
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3. Learned counsel for the appellant alleging false implication
compliance 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
appellant.
seizure was at 06.40 AM at the door step of the appellant. We
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find it difficult to believe that in a rural residential locality, the
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
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
produced was of very low quality and the quality of ink used in
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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
deal with this aspect of the matter at all. The fact of an earlier
cannot be a ground for conviction per se.
7. In Mohan Lal vs. State of Punjab, AIR 2018 SC 3853, it
was observed:
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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
itself. In the circumstances the mere production of a laboratory
have to be corelated. The observations in Vijay Jain vs. State
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
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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.”
Pradesh, (2011) 5 SCC 123, it was observed:
10. We are, therefore, unable to uphold the conviction of the
appellant. The conviction by the Trial Court and upheld by the
forthwith unless wanted in any other case.
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11. The appeal is allowed.
.……………………….J.
(Ashok Bhushan)
………………………..J.
(Navin Sinha)
New Delhi,
July 30, 2019.