STATE OF RAJASTHAN versus SAHI RAM
[2019] 14 S.C.R. 1117, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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STATE OF RAJASTHAN
v.
SAHI RAM
(Criminal Appeal No.1497 of 2019)
SEPTEMBER 27, 2019
[UDAY UMESH LALIT AND VINEET SARAN, JJ.]
Narcotic Drugs and Psychotropic Substances Act, 1985:
s.8 r/w s.15 – Conviction under – By Special Court – In
appeal, High Court acquitted the accused holding that failure to
exhibit the entire contraband material before the Court was fatal
and hence evidence regarding alleged seizure was liable to be
discarded – Appeal to Supreme Court – Held: In the facts of the
present case, seizure of the contraband was conclusively proved –
If the seizure of the material is otherwise proved on record and is
not even doubted or disputed, entire contraband need not be placed
before the Court – High Court erred in extending benefit of
acquittal to the accused – Conviction order restored.
Allowing the appeal, the Court
HELD: 1. In the present matter, the evidence of PW15
shows that from and out of 7 bags of poppy husk, samples
weighing about 500 grams were taken out of each bag.  Out of
these 3500 grams thus taken out, two samples of 500 grams were
independently sealed while rest 2500 grams were also sealed in
a separate pouch.  These samples were marked A, B and C
respectively.  The bags were also independently sealed and taken
in custody and Exbt-5 seizure memo which recorded all these
facts was also signed by the accused.  At no stage in
cross-examination, even a suggestion was put to the witness that
either the signatures of the accused were
taken by fraud, coer-
cion or mis-representation or that the signatures were not of the
accused or that they did not understand the purport of the
seizure memo.  It would therefore be difficult to even suggest
that the seizure of contraband weighing 223 kgs was not proved
by the prosecution.  Rather this fact stood conclusively proven.
[Para 16] [1128-G-H; 1129-A-B]
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2. If the seizure of the material is otherwise proved on
record and is not even doubted or disputed, the entire contra-
band material need not be placed before this Court.  If the sei-
zure 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
matter when those 7 bags weighed 223 kgs 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 essen-
tial ingredients constituting an offence are made out.
[Para 17] [1129-C-D]
Noor Aga v. State of Punjab & Another (2008) 16 SCC
417:  [2008] 10  SCR 379; Jitendra & Another v. State
of Madhya Pradesh (2004) 10 SCC 562 : [2003] 3
Suppl. SCR 918; Ashok alias Dangra Jaiswal v. State
of Madhya Pradesh  (2011) 5 SCC 123 : [2011] 4  SCR
253; Vijay Jain v. State of Madhya Pradesh (2013) 14
SCC 527 : [2013] 4 SCR 293; Vijay Pandey v. State of
Uttar Pradesh  AIR  2019 SC 3569 – referred to.
Case Law Reference
[2008] 10 SCR 379
referred to
Para 8
[2003] 3 Suppl. SCR 918       referred to
Para 8
[2011] 4 SCR 253
        referred to
Para 8
[2013] 4 SCR 293
        referred to
Para 8
AIR 2019 SC 3569
        referred to
Para 14
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1497 of 2019
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From the Judgment and Order dated 07.04.2016 of the High Court
of Judicature for Rajasthan at Jodhpur in Criminal Appeal No. 774 of
2015
Dr. Manish Singhvi, Sr. Adv., Satyendra Kr., Milind Kumar, Advs.
for the Appellant.
Saurabh Ajay Gupta, Adv. for the Respondent.
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.
1. Leave granted.
2. This appeal challenges the final order dated 07.04.2016 passed
by the High Court1 in S.B. Criminal Appeal No.774 of 2015.
3. On receiving source information on 20.06.2006 that in a white
coloured Tavera vehicle bearing registration No.RJ27-TC-0323 three
persons were coming from Madhya Pradesh along with contraband
material namely poppy straw and were proceeding towards Jodhpur, the
information was reduced to writing and a copy was immediately
forwarded to the superior officers in terms of requirements of Section
42 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as “the NDPS Act”).
4. A team was thereafter constituted which reached the Railway
crossing near petrol pump Nimbahera.  Two private persons named
Kishan Lal and Chaman Lal were asked to associate as Panchas. At
9.40 AM, the vehicle was seen coming from Neemuch and was stopped.
The vehicle was being driven by the respondent while the other two
occupants were identified as Sohan and Kanhaiya Lal.  After following
mandatory requirements under the provisions of the NDPS Act, the
vehicle was searched, during which seven
bags of poppy straw, the
gross weight being 223 kgs were found behind the driver’s seat.  From
every bag two samples of 500 grams were taken and two such samples
were sealed.  Remaining quantity of 2500 grams was put in a separate
pouch.  The bags weighing about 223 kgs were also sealed.  Punchnama
to that effect was recorded which bore the signatures of the respondent
and other persons.
1The High Court of Judicature for Rajasthan at Jodhpur
STATE OF RAJASTHAN  v.  SAHI RAM
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5. After completing investigation, charge-sheet was filed against
the respondent and against said Sohan and Kanhaiya Lal for the offence
punishable under Section 8 read with 15 of the NDPS Act while the
investigation was kept pending against one Shyam Sunder, his wife Vimla,
the owners of the vehicle and one Pappu Raja.  By Order dated
25.05.2015, said Sohan and Kanhaiya Lal were marked as absconding
accused in the trial.
6. The prosecution examined eighteen witnesses in support of its
case.        PW15, Surender Singh, from Police Station Nimbahera had
entered the information in Rojnamcha and had intimated the superior
officials.  As regards the recovery of the contraband material he stated:-
“…… Behind the driver’s seat there were white plastic bags which
were tied with strings, which were opened with the help of the
police team and the witnesses, and smelled, and then everybody
told it to be poppy husk. They were asked if they had any valid
license for this poppy husk and they had told that they do not have
any license. Their above act of all the three people was found to
be punishable offence under section 8/15 NDPS Act due to which
the bags were taken out of the vehicle, all the bags were weighed,
then, in the 7 bags 223 kg poppy husk was found 500 gm poppy
husk was taken out from every bag and was weighed together
and it came out to be 3500 gm. Out of this two samples of 500 gm
each were put in plastic packets
and were then put in white cloth
bags and seal stamped. The sample was marked A and the control
sample was marked B. the remaining 2500 gm sample was seal
stamped and given mark C.”
“…..All the three accused Sahi Ram, Sohan, Kanhaiya Lal were
given notices under section 52 and were arrested. I recognize all
the three accused, who are today not present in the court. The
notice given to witness Kishan is Exibit P-1, which bears my
signatures from E to F, and the signatures of Kishan are from C
to D, the notice given to Chaman is Exibit P-17, which bears my
signatures from E to F, and the signatures of Chaman are from C
to D. the notice given to accused Sahi Ram under section 50 is
Exibit P-2, the notice given to accused Sohan under section 50 is
Exibit P-3, the notice given to accused Kanhaiya Lal under section
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50 is Exibit P-4, which bears my signatures from E to F, and the
signatures of accused are from G to H. the memo of seizure of
poppy husk is Exibit P-5, which bears my signatures from E to F,
and the signatures of accused are from G to H, I to J, K to L.”
7. After considering the relevant evidence on record, the Special
Judge, NDPS Case No.2, Chittorgarh vide judgment dated 01.08.2015
found that the case was established against the respondent herein and
he was convicted for offence punishable under Section 8 read with 15
of the NDPS Act.  By a separate order of even date, the respondent
was sentenced to suffer rigorous imprisonment for fifteen years and to
pay fine of Rs.1,50,000/-; in default whereof he was directed to suffer
further rigorous imprisonment for one year.  It was observed by the trial
court:-
“….. In the present case, charge of keeping total 223 kilograms
of illegal Dodachura in his conscious possession and transporting
it in Tavera car bearing No. RJ27-TC-0323 has been proved
against the accused Sahi Ram in the present case, in regard to
which he  had no valid license to keep the same in his possession
and quantity of seized illegal Dodachura is more than commercial
quantity.”
8. The respondent being aggrieved filed S.B. Criminal Appeal
No.774 of 2015 before the High Court.  Only one ground was urged in
support of the appeal that the Muddamal i.e., contraband material in
question was not produced before the Court and that the evidence on
record did not support the case about the seizure and recovery of 223
kgs. of contraband.  The High Court accepted the submission and
concluded that only two samples- packets and one bag of poppy straw
weighing 2.5 kg were produced and exhibited while the entire contraband
material was not produced and exhibited.  Relying on the decisions of
this Court in Noor Aga v. State of Punjab & Another2, Jitendra &
Another v. State of Madhya Pradesh3, Ashok alias Dangra Jaiswal
v. State of Madhya Pradesh4 and Vijay Jain v. State of Madhya
Pradesh5 it was observed that failure to exhibit Muddamal and
2(2008) 16 SCC 417
3(2004) 10 SCC 562
4(2011) 5 SCC 123
5(2013) 14 SCC 527
STATE OF RAJASTHAN  v.  SAHI RAM
[UDAY UMESH LALIT, J.]
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contraband material was fatal to the case of prosecution.  The High
Court observed:-
“….Non-exhibition of the Muddamal in the court leads to the
irrefutable conclusion that the prosecution failed to lead primary
evidence of the seizure and thus, the entire evidence of the
prosecution regarding the alleged recovery has to be discarded.
    Since in the case at hand, the prosecution failed to exhibit the
Muddamal in the court, the entire evidence of the prosecution
regarding alleged seizure has to be discarded.”
With the aforesaid view, the High Court allowed the appeal, set
aside the Judgment and Order dated 01.08.2015 passed by the Special
Judge and acquitted the respondent of the charge levelled against him.
9. We heard Dr. Manish Singhvi, learned Senior Advocate for the
State and Mr. Saurabh Ajay Gupta, learned Advocate for the respondent.
10. At the outset, it must be considered whether the cases relied
upon by the High Court state in unequivocal terms that in case of failure
to produce the contraband material before the Court, the case of the
prosecution is required to be discarded or not.
11. In Jitendra & Another v. State of Madhya Pradesh3,it was
undoubtedly submitted on behalf of the accused that the material objects
were not at all produced at the trial.  The submission in that behalf was
recorded in para No.4 as under:
“4.  The learned counsel for the appellants strongly urged that
the High Court has
completely missed the crucial issue that was
urged on behalf of the accused. He pointed out that this was a
strange case where the material objects viz. one kilogram charas
alleged to have been seized from the custody of Jitendra, and one
kilogram ganja alleged to have been seized from the possession
of Jitendra’s mother, accused Sheela, were not at all produced at
the trial.”
It was further submitted that there was no material whatsoever
to prove that the samples that were dispatched to the FSL were actually
drawn from the seized material.  The matter was considered by this
Court as under:
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“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 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.
7. The learned counsel for the appellants brought to our
notice
two more facts. The High Court seems to have relied on a copy
of the letter dated 14-8-1999 written by the Superintendent of
Police, Datia to the Director, State Forensic Laboratory, Sagar
and placed reliance thereupon, although this was not a document
produced during the trial and proved according to law. The High
Court commented that the prosecution had failed to exhibit the
letter during the trial and that the trial court was not vigilant in this
respect. In the absence of anyone affirming the correctness of
the contents of the letter, the High Court has placed reliance on
the contents of the letter merely on the ground that the said
document was mentioned at Serial No. 9 in the charge-sheet, and
presumably its copy must have been supplied to the accused. This
is another lacuna, noticeable in the judgment of the High Court.
STATE OF RAJASTHAN  v.  SAHI RAM
[UDAY UMESH LALIT, J.]
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8. The learned counsel for the appellant drew our attention to the
final report dated 3-10-1999 submitted under Section 173 CrPC,
from the original file. We notice something peculiar here. In the
final report, in column 16, headed “Result of laboratory analysis”,
it is stated “report of FSL, Sagar is awaited”. Interestingly, the
report of the State Forensic Laboratory, Sagar is dated 30-8-1999
(Ext. P-17) certifying that the packets ‘A’, ‘B’ and ‘C’ sent to the
laboratory contained charas and ganja. It appears strange to us
that the final report submitted under Section 173 CrPC on 3-10-
1999, on which the charge-sheet was based, was submitted by
the police officer concerned either without being aware of or without
reading the report of the Forensic Science Laboratory. Or else,
the Forensic Science Laboratory’s report is ante-dated. This is
another circumstance which militates strongly against the
prosecution.
9.Taking the cumulative effect of all the circumstances, it appears
to us that the material placed on record by the prosecution does
not bring home the charge beyond reasonable doubt. We are of
the view that upon the material placed on record it would be unsafe
to convict the appellants. They are certainly entitled to the benefit
of doubt.” (emphasis added)
12. In Ashokalias Dangra Jaiswal v. State of Madhya Pradesh4,
it was observed as under:-
“9. The seizure witnesses turning hostile may not be very
significant, as it is not an uncommon phenomenon in criminal trials,
particularly in cases relating to NDPS but there are some other
circumstances which, when taken together, make it very unsafe
to uphold the appellant’s conviction.
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 were, however, not deposited at the FSL on
that date but those came back to the police station on 12-3-2005
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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.
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 non-production. 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.”
Relying on the decision of this Court in Jitendra3, the benefit of
doubt was given and the accused was acquitted.
13. In Vijay Jain v. State of Madhya Pradesh5, it was submitted
on behalf of the accused, as is evident from para 4 of the decision, that
there was non-production of the contraband goods.  This Court dealt
with the matter as under:-
“9. Para 96 of the judgment of this Court in Noor Aga case2 on
which the learned counsel for the State very strongly relies is
quoted hereinbelow: (SCC p. 464)
“96. Last but not the least, physical evidence relating to three
samples taken from the bulk amount of heroin was also not
produced. Even if it is accepted for the sake of argument that
STATE OF RAJASTHAN  v.  SAHI RAM
[UDAY UMESH LALIT, J.]
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the bulk quantity was destroyed, the samples were essential to
be produced and proved as primary evidence for the purpose
of establishing the fact of recovery of heroin as envisaged under
Section 52-A of the Act.”
Thus in para 96 of the judgment in Noor Aga case2this Court has
held that the prosecution must in any case produce the samples
even where the bulk quantity is said to have been destroyed. The
observations of this Court in the aforesaid paragraph of the
judgment do not say anything about the consequence of non-
production of the contraband goods before the court in a
prosecution under the NDPS Act. (Emphasis added)
10. On the other hand, on a reading of this Court’s judgment in
Jitendra case3, 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 Ashok4
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 non-
production 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.
12. We are thus of the view that as the prosecution has not
produced the brown sugar before the Court and has also not offered
any explanation for non-production of the brown sugar alleged to
have been seized from the appellants and as the evidence of the
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witnesses (PW 2 and PW 3) to the seizure of the materials does
not establish the seizure of the brown sugar from the possession
of the appellants, the judgment of the trial court convicting the
appellants and the judgment of the High Court maintaining the
conviction are not sustainable.” (emphasis added)
14. In a recent decision dated 30th July, 2019 of this Court in Vijay
Pandey v. State of Uttar Pradesh6the benefit was extended on the
ground that there was no co-relation between the seized samples and
one that was tested.  Reliance was placed on the observations of this
Court in Vijay Jain5which inter alia stated that there was no evidence
to connect the forensic report that the substance that was seized from
the possession of the accused.  The relevant observations are to be
found in para 8 of the decision:
“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 samples tested was narcotics cannot be conclusive proof
by itself.  The sample seized and that tested have to be co-related.
The observations in Vijay Jain5, as follows are considered
relevant:
10. On the other hand, on a reading of this Court’s judgment in
Jitendra case3, 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 Ashok4
6Criminal Appeal No.1143 of 2019 @ SLP(Crl) No.1273 of 2019 decided on 30.07.2019
STATE OF RAJASTHAN  v.  SAHI RAM
[UDAY UMESH LALIT, J.]
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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 non-
production 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.” (emphasis added)
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 said submission singularly
weighed with this Court to extend benefit of acquittal only on that ground.
As is clear from decision of this Court in Jitendra3, 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
Ashok4, 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 Jain5, 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 Pandey6, 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.
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.
16. Turning to the facts in the present matter, the evidence of
PW15 Surender Singh shows that from and out of 7 bags of poppy husk,
samples weighing about 500 grams were taken out of each bag.  Out of
these 3500 grams thus taken out, two samples of 500 grams were
independently sealed while rest 2500 grams were also sealed in a separate
pouch.  These samples were marked A, B and C respectively.  The bags
were also independently sealed and taken in custody and Exbt-5 seizure
memo which recorded all these facts was also signed by the accused.
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We have gone through the cross-examination of the witness.  At no
stage even a suggestion was put to the witness that either the signatures
of the accused were taken by fraud, coercion or mis-representation or
that the signatures were not of the accused or that they did not understand
the purport of the seizure memo.  It would therefore be difficult to even
suggest that the seizure of contraband weighing 223 kgs was not proved
by the prosecution.  In our view this fact stood conclusively proven.
17. 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 this 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 kgs 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.
18. In the aforesaid
premises the conclusion drawn by the High
Court was completely unsustainable and the High Court erred in extending
the benefit of acquittal to the respondent.  We, therefore, allow this
appeal, set aside the view taken by the High Court and restore the order
of conviction as recorded by the trial court against the respondent in its
judgment and order dated 01.08.2015.  The minimum sentence of
imprisonment for the offence punishable under Section 8 read with 15 of
the NDPS Act is 10 years.
Considering the facts on record, in our view the appropriate
sentence would be Rigorous  Imprisonment for 10 years as substantive
sentence.  We order accordingly, keeping the other parts of sentence
namely sentence of fine and sentence in default of payment of fine as
ordered by the trial court, intact and unchanged.
STATE OF RAJASTHAN  v.  SAHI RAM
[UDAY UMESH LALIT, J.]

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19. The appeal stands allowed in aforesaid terms.
20. We direct the respondent to surrender before the concerned
Police Station within seven days from today, failing which, the respondent
shall immediately be taken in custody by the concerned police station.
A copy of this order of this Court shall be sent to the concerned
CJM as well as the Police Station for intimation and compliance.
Kalpana K. Tripathy
                                 Appeal allowed.