If seizure is otherwise proved on record and it is not even doubted or disputed, it need not be plac

THAN KUNWAR V STATE OF HARYANA CRIMINAL APPEAL NO. 2172 OF 2011

The judgment was pronounced by justice ASHOK BHUSHAN and K.M. JOSEPH on march 02, 2020

Facts

Police officials noticed the appellant and another accused approaching from 8, Marla Colony carrying a bag in their hands.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 Gazette Officer or Magistrate.The bag contained on weighment 6 kilograms 300 grams of opium. Samples were taken. Thereafter, the formal FIR was registered.The appellant and other accused was convicted under section 18 of the Narcotics Drugs and Psychotropic Substances Act, 1985. The accused where found by 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. The appellant preferred the current appeal in apex court.

Contentions

It is firstly pointed out by appellant that Gazetted Officer, was present at the same time in respect of another case. Next, it is contended that the contraband, allegedly 6 kilograms 300 grams, was not produced before the Court.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, itmay not be necessary to comply with the requirementsof Section 50 of the Act but if there is also apersonal search, Section 50 is attracted. It was also contented by the learned Counsel for the appellant is that the prosecution has not associated any independent witness in support of its case.

The submission of responded is 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 distinctfrom the person of the accused, there is norequirement 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.

The court observed argument, therefore, is that from the evidence, the DSP must be present at the same time at two different places. This clearly rendered prosecution case suspect and benefit of doubt should at any rate must go to the accused.It was in these circumstances the Court drew support from the judgment of this Court in Jitendra (supra).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.

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 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), Court held, we do not find merit in the argument of the appellant.

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 clearfrom the decision of this Courtin 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 from paras 7 to 9 of the decision.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.

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 the sample was produced. There is no argument relating to the tampering with the seal.

In the facts of this case, we have no hesitation to reject the contention of the appellant. The appeal stands dismissed.

“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.”

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