Than Kunwar vs The State Of Haryana on 2 March, 2020


Supreme Court of India

Than Kunwar vs The State Of Haryana on 2 March, 2020

Author: K.M. Joseph

Bench: Sanjay Kishan Kaul, K.M. Joseph

                                                                       REPORTABLE

                              IN THE SUPREME COURT OF INDIA
                             CRIMINAL APPELLATE JURISDICTION

                             CRIMINAL APPEAL NO. 2172 OF 2011
         THAN KUNWAR                                                ... APPELLANT


                                                 VERSUS

         STATE OF HARYANA                                       ... RESPONDENT


                                        J U D G M E N T

K.M. JOSEPH, J.

1. 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 and convicted her under Section 18 of

the Narcotics Drugs and Psychotropic Substances Act,

1985 (NDPS Act).

2. The prosecution case, briefly put, is as follows:

On 10.04.2004, ASI-PW7 and other police

officials noticed the appellant and another

Signature Not Verified
accused approaching from 8, Marla Colony
Digitally signed by
ASHA SUNDRIYAL
Date: 2020.03.02
16:21:38 IST
Reason:

carrying a bag in their hands. On seeing the

1
police party, the accused allegedly turned back

and started walking briskly. This aroused

suspicion in the mind of the ASI. 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 Gazetted Officer or

Magistrate. The appellant desired search by a

Gazetted Officer. The DSP came to the spot. On

his directions, the search was carried out. The

bag contained on weighment 6 kilograms 300 grams

of opium. Samples were taken. Thereafter, the

formal FIR was registered. On receipt of the FSL

report and completing investigation, the charge-

sheet was filed. Prosecution examined 8

witnesses. The appellant denied incriminating

circumstances, in the questioning held under

Section 313 of the Code of Criminal Procedure.

As noticed earlier, the High Court has affirmed

the appellant’s conviction.

3. We have heard learned Counsel for the appellant.

2
THE CONTENTIONS OF THE APPELLANT

4. It is firstly pointed out that Shri Om Parkash,

DSP – Gazetted Officer, (in whose presence, the

search was alleged by the prosecution was conducted)

was present at the same time in respect of another

case. In other words, he would submit that in

connection with this case in his testimony, he has

stated that he reached the spot at about 01:30 P.M.

There is evidence that he remained there till about

03:00 P.M. However, this is refuted with reference to

his testimony which has been produced in the Court,

tending to show that he was present from 12:30 P.M.

on the very same date in connection with another case

and he remained there till 02:30 P.M. The question

is, therefore, as to how the same person under whose

gaze, the search was allegedly carried out, could be

present at two different places at the same time.

This brought under a cloud, the entire prosecution

case runs the argument. Next, it is contended that

the contraband, allegedly 6 kilograms 300 grams, was

not produced before the Court. This vitiated the

3
conviction. In this regard, reliance was placed on

the following judgments of this Court:

(1) Jitendra and another v. State of M.P.1;

(2) Ashok alias Dangra Jaiswal v. State of Madhya

Pradesh2; and

(3) Gorakh Nath Prasad v. State of Bihar3.

5. No doubt, learned Counsel also draws our

attention to the judgment of this Court in State of

Rajasthan v. Sahi Ram4, where a contra view is

essentially taken based on the fact that if a large

quantity of contraband is involved, it may not be

necessary to produce.

6. 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, it

may not be necessary to comply with the requirements

of Section 50 of the Act but if there is also a

personal search, Section 50 is attracted. In this

context, he drew our attention to the judgment of
1 (2004) 10 SCC 562
2 (2011) 5 SCC 123
3 (2018) 2 SCC 305
4 (2019) 10 SCC 649

4
Bench of two learned Judges reported in Dilip and

another v. State of M.P.5. Therein, it is, inter alia,

stated as follows:

“16. In this case, the provisions of
Section 50 might not have been required to
be complied with so far as the search of
scooter is concerned, but, keeping in view
the fact that the person of the appellants
was also searched, it was obligatory on
the part of PW 10 to comply with the said
provisions. It was not done.”

7. In fact, when it was pointed out by learned

Counsel for the appellant that the aforesaid view has

been disapproved by a Bench of three learned Judges

in the decision in State of Punjab v. Baljinder Singh

and another6, he pointed out that, in fact, a Bench of

three learned Judges has come to rely on the decision

by the Bench of two learned Judges in the judgment in

SK. Raju alias Abdul Haque alias Jagga v. State of

West Bengal7.

8. The last contention by the learned Counsel for

the appellant is that the prosecution has not

associated any independent witness in support of its

5 (2007) 1 SCC 450
6 (2019) 10 SCC 473
7 (2018) 9 SCC 708

5
case. He points out by referring to the judgment

itself that there were witnesses available but still

no witnesses other than the official witnesses have

been enlisted in support of the prosecution case.

9. Per contra, learned Counsel for the State would

submit that the time of arrival of Sh. Om Parkash,

Gazetted Officer (DSP) has not been questioned. He

further pointed out that the Court must bear in mind

the lapse of time from the date of incident to the

time of examination of the witness. 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 distinct

from the person of the accused, there is no

requirement 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. There is no provision in the Act which

mandates its production. Still further, he would

6
point out that the appellant has not raised this

complaint before the Trial court or the High Court.

There is no dispute raised by Counsel, in fact, that

the contraband article, as such, is not produced.

However, he pointed out that there is the FSL report.

He supports the judgment of the High Court in regard

to the non-production of any independent witness.

10. First question which falls for our consideration

is whether there is merit in the contention of the

appellant that no independent witness is produced. In

this regard, the testimony of PW-6 is relied upon. In

his cross-examination, he has, inter alia, stated as

follows:

                   It   was    a   busy   place;    people      were
           passing      thereby.    Some    persons      from   the

public were called but they were reluctant
but no action was taken. Resident of Kabri
was asked to join the investigation.
Sunil, Gulshan, were also do so. They were
there at about 1:00 P.M. I did not know
prem was Sarpanch or not of the village.
They stopped for about 5 minutes at the
spot. Some people were called from the

7
nearby shop but I do not know their names
of the name of the shop.

11. It is, therefore, the case of the appellant, this

is not a case where independent witnesses could not

have been associated with the investigation and the

prosecution.

12. We will deal with this after we also consider

the other aspects. The next aspect which is

highlighted, as already noticed, was the discrepancy

brought out in the testimony of the Gazetted Officer,

viz., the DSP who was allegedly called in by the ASI

when upon being informed about the right under

Section 50, the accused demanded compliance of

Section 50 and on a telephone message, the DSP

arrived at the spot. In his deposition, it is true

that the Gazetted Officer (DSP) has deposed, inter

alia, as follows:

He received a telephone call on his

mobile phone from ASI. It was at about

01:10 P.M., he received the call. He

reached the spot at about 01:30 P.M.

8

The ASI examined as PW-7, has stated

that the accused was apprehended at about

01:00 P.M. and they remained at the spot

till 04:30 P.M. Notice under Section 50 of

the Act, was given at about 01:05 P.M..

Message to the DSP was sent telephonically

by about 01:05 P.M. He does not remember

from the name of the shop from which the

telephone call was made. The DSP/Gazetted

Officer was present in the office at that

time. The DSP came at about 01:20 P.M. He

remained at the spot till 03.00 P.M.

13. The case of the appellant is based on the

following testimony which was given by the very same,

DSP in another case, which has been marked in the

Trial Court. In the said case (viz., State v. Heera

Lal), he states, inter alia, as follows:

On 10.04.2004, he was posted as DSP

Head Quarters, Panipat. He was present in

his office at about 12 Noon. He deposed to

have received a telephone call from a

9
police officer that notice under Section 50

has been served and the person apprehended

in the said case opted to have a search

before a Gazetted Officer. He reached the

spot at Jattal Road, near railway crossing

at 8, Marla, Panipat. What is of relevance

is that, he stated in his cross-examination

that he remained at the spot upto 02:30

P.M. He reached the spot or place of

occurrence at about 12:20 PM. The distance

to the spot from his office was stated to

be 2.5 km.

14. Thus, on the one hand, in this case, the very

same officer has deposed that he reached the spot at

about 01:30 P.M. and the ASI has deposed that he

remained at the spot till 03:00 P.M. The DSP has

deposed in connection with another case that he

reached the spot of that investigation in connection

with that case at about 12:20 P.M. and remained there

till 02:30 P.M. The argument, therefore, is that from

the evidence, the DSP must be present at the same

10
time at two different places. This clearly rendered

prosecution case suspect and benefit of doubt should

at any rate must go to the accused.

15. As regards the contention of violation of

Section 50 it is based on their being personal search

of the accused. PW 6, the ASI has inter alia stated

as follows:

Personal search of accused was taken

by the lady constable under the shadow of

the jeep. I do not remember… I do not

remember the direction of the jeep under

which the personal search of the accused

was taken. The lady constable has alone

taken away the accused for personal

search…. I do not remember whether at the

time of personal search driver of the jeep

was in the jeep or not.

16. Learned Counsel for the appellant drew our

attention to the judgment of this Court in

Dilip (supra). Therein, a Bench of two learned

Judges held, inter alia, as follows:

11
“16. In this case, the provisions of
Section 50 might not have been required to
be complied with so far as the search of
scooter is concerned, but, keeping in view
the fact that the person of the appellants
was also searched, it was obligatory on
the part of PW 10 to comply with the said
provisions. It was not done.”

17. No doubt we notice the judgment of this Court

rendered by a Bench of three learned Judges in

SK. Raju (supra). Therein, the Court referred to the

judgment in Dilip (supra), and thereafter, went on

to, inter alia, hold as follows:

“As soon as the search of the
person take place the requirement of
mandatory compliance with Section 50
is attracted irrespective of whether
contraband is recovered from the
person of the detainee or not.”

18. In the said case, the Court went on to hold that

requirement of Section 50 was complied with. However,

we notice a later development in the form of a

judgment rendered by a Bench of three learned judges

touching upon the correctness of the view expressed in

12
Dilip (supra) as contained in paragraph 16 of the

judgment.

19. In Baljinder Singh (supra), this Court

elaborately considered the matter with reference to

the applicability of Section 50 in a case where there

is a personal search also.

20. This was the case where 7 bags of poppy husk each

weighing 34 kg. were found from the vehicle. A

personal search of the accused was undertaken after

their arrest which did not lead to any recovery of

contraband. The High Court found violation of Section

50 as the personal search of the accused was not

conducted before the Magistrate/Gazetted Officer and

set aside the conviction of the respondent. This

Court, in Baljinder Singh (supra), went on to consider

the law laid down by the Constitution Bench in Baldev

Singh (supra) and, inter alia, held as follows:

“16. The conclusion (3) as recorded
by the Constitution Bench in para 57 of
its judgment in Baldev Singh [State of
Punjab v. Baldev Singh
, (1999) 6 SCC 172:

1999 SCC (Cri) 1080] clearly states that
the conviction may not be based “only” on
the basis of possession of an illicit

13
article recovered from personal search in
violation of the requirements under
Section 50 of the Act, but if there be
other evidence on record, such material
can certainly be looked into.

17. In the instant case, the personal
search of the accused did not result in
recovery of any contraband. Even if there
was any such recovery, the same could not
be relied upon for want of compliance of
the requirements of Section 50 of the Act.
But the search of the vehicle and recovery
of contraband pursuant thereto having
stood proved, merely because there was
non-compliance of Section 50 of the Act as
far as “personal search” was concerned, no
benefit can be extended so as to
invalidate the effect of recovery from the
search of the vehicle. Any such idea would
be directly in the teeth of conclusion (3)
as aforesaid.

18. The decision of this Court
in Dilip case [Dilip v. State of M.P.,
(2007) 1 SCC 450 : (2007) 1 SCC (Cri) 377]
, however, has not adverted to the
distinction as discussed hereinabove and
proceeded to confer advantage upon the
accused even in respect of recovery from
the vehicle, on the ground that the
requirements of Section 50 relating to
personal search were not complied with. In
our view, the decision of this Court in
the said judgment in Dilip
case [Dilip v. State of M.P., (2007) 1 SCC
450 : (2007) 1 SCC (Cri) 377] is not

14
correct and is opposed to the law laid
down by this Court in Baldev Singh [State
of Punjab v. Baldev Singh
, (1999) 6 SCC
172 : 1999 SCC (Cri) 1080] and other
judgments.”

21. Having regard to the judgment by the three-Judge

Bench, which directly dealt with this issue, viz., the

correctness of the view in Dilip (supra) reliance

placed by the appellant on paragraph 16 may not be

available. As already noticed, we are not oblivious

of the observation which has been made in the other

three Judge Bench judgment of this Court in SK. Raju

(supra), which it appears, was not brought to the

notice to the Bench which decided the case later in

Baljinder Singh (supra). We notice

however that the later decision draws inspiration from

the Constitution Bench decision in Baldev Singh

(supra). We also notice that this is not a case where

anything was recovered on the alleged personal search.

The recovery was effected from the bag for which it is

settled law that compliance with Section 50 of the Act

is not required.

15

22. The complaint, of non-production of the seized

material, is based on case law of this Court

originating with the judgment of this Court in

Jitendra (supra). It is necessary to survey the case

law beginning with Jitendra (supra). In the said

case, it is necessary to notice certain facts. There

were panch witnesses for the recovery examined by the

prosecution. They turned hostile. Apart from the

prosecution witnesses PW7, PW8 and PW6, there was

found no independent witness regarding recovery. It

is worthwhile to set out paragraph 6. It reads as

under:

“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

16
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.”
(Emphasis supplied)

23. We notice that this decision came to be followed

in the judgment reported in Ashok alias Dangra

Jaiswal (supra). Therein, the Court noted, apart

from seizure witness turning hostile, which was found

to be not an uncommon phenomenon, certain other

features, as are narrated in paragraphs 10 and 11,

which read as under:

“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

17
were, however, not deposited at the FSL on
that date but those came back to the
police station on 12-3-2005 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.”

24. It is thereafter the Court noted that last but

not the least the narcotic powder was never produced

in the trial court as a material object and again

there was no explanation for its non-production. It

was found that there was no evidence to connect

forensic report with the substance that was seized

18
from the possession of the appellant or the other

accused (see paragraph 12). It was in these

circumstances the Court drew support from the

judgment of this Court in Jitendra (supra). The

appellant has not been able to demonstrate in the

facts of this case any facts which could be likened

to the facts stated in paragraphs 10 and 11. At least

nothing was urged by the learned Counsel for the

appellant on these lines.

25. Next judgment to be noticed is Vijay Jain v.

State of Madhya Pradesh8. The first feature we notice

is that the contention about the contraband not being

produced was raised before the trial court (see

paragraph 5). It was a case where a suitcase was

produced as containing the alleged contraband. In

regard to the suitcase, the evidence of PW11 was

elaborately considered. It was found that the only

evidence before the Court was that in the suitcase

there was only a big pack wrapped in cloth and cloth

was torn and there was blue colour polythene in which

there were clothes. The evidence of PW11 did not

8 (2013) 14 SCC 527

19
reveal any brown sugar being found in the suitcase.

No doubt, the Court referred to two samples being

prepared. Then the Court noted that PW3 has stated

before the court that those samples were not prepared

in his presence. PW2 had stated that the witnesses

were not taken to the site where the materials were

seized. In Gorakh Nath Prasad (supra), the Court

noted that neither the seized Ganja nor the sample

drawn at the time of seizure was produced. The

investigating officer-PW7 deposed there were no MR

No. on the sealed material. He was also not sure

whether the seized material had been kept at the

Malkhana and also that it had not been produced in

the Court. The independent witness with regard to

the search and seizure, PW2 and PW3 turned hostile.

In these circumstances, it appears the court went on

to hold that non-production of the seized material

was therefore fatal to the prosecution case. The

Court thereafter referred to the judgment of Ashok

(supra) following Jitendra (supra). Lastly, we

notice the judgment of this Court in Mohinder Singh

20
v. State of Punjab9
. It was rendered by a Bench of

three learned Judges. It was a case where the Trial

Court had acquitted the appellant noticing, inter

alia, that no order of the Magistrate was proved to

show that the case property was produced before the

Court. The High Court went on to reverse the

acquittal and convicted the appellant. It is

worthwhile to notice what this Court had said in the

facts of this case:

“10. So far as the contention
regarding production of the contraband
seized from the accused, in his evidence,
Harbhajan Singh (PW 3) stated that on 1-5-

1998, he produced the sample parcels and
the case property parcels with the seal
and the sample seals before the Judicial
Magistrate, Ludhiana and the Magistrate
has recorded the seals tallied with the
specimen impression. Harbhajan Singh (PW

3) further stated that after return of the
samples and the parcels from the court,
the same were lodged by him to the
Malkhana on 1-5-1998 itself. Baldev Singh
(PW 5) the then Malkhana incharge though
orally stated about the deposit of the
contraband in the Malkhana, but Baldev
Singh (PW 5) has not produced Register No.
19 maintained in the Malkhana to show the
relevant entry in Register No. 19 as to

9 (2018) 18 SCC 540

21
deposit of the case property in the
Malkhana. Oral evidence of Harbhajan Singh
(PW 3) and Baldev Singh (PW 5) as to the
deposit of the contraband seized from the
accused with Malkhana is not corroborated
by the documentary evidence, namely, the
entry in Register No. 19.

11. After referring to the oral
evidence of Joginder Singh (PW 2) and
Harbhajan Singh (PW 3), the trial court in
para 14 of its judgment has recorded the
finding that no order of the Magistrate to
prove the production of the contraband
before the Magistrate was available on the
file. After recording such observation,
the trial court held that the oral
evidence regarding production of the case
property before the Magistrate was not
trustworthy and not acceptable. In the
absence of the order of the Magistrate
showing that the contraband seized from
the accused was produced before the
Magistrate, the oral evidence adduced that
the contraband was produced before the
Magistrate cannot form the basis to record
the conviction.”

26. Finally, it is necessary also to refer to

paragraph 12 regarding the observation made therein.

It would assume relevance, which reads as follows:

“12. For proving the offence under
the NDPS Act, it is necessary for the
prosecution to establish the quantity of

22
the contraband goods allegedly seized from
the possession of the accused and the best
evidence would be the court records as to
the production of the contraband before
the Magistrate and deposit of the same
before the Malkhana or the document
showing destruction of the contraband.”

27. For determining the exact provision applicable

under the law, viz., whether the offence relates to

commercial quantity or the other categories, it may

be necessary.

28. In the facts of this case we, however, notice

certain features. Before the Trial Court, the

contention as such that not seen raised about the

non-production of the contraband articles. We may

also however refer to the judgment of this Court in

Sahi Ram (supra). This was a case where the vehicle

was searched, during which 7 bags of poppy straw, the

gross weight being 233 kg., were found behind the

driver’s seat. Samples were taken. The High court in

appeal by the respondent found that only 2 sample

packets and one bag of poppy straw weighing 2.5 kg.

were produced and relying upon the case law which we

have referred to, acquitted the respondent. The

23
Court also noted paragraph 9 of the judgment in

Jitendra (supra) where the court observed, taking the

cumulative effect of all circumstances, it was not

sufficient to bring home the charge. The Court also

referred to the judgment of this Court in Mohinder

Singh (supra).

29. 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. The Court further held that

if the seizure is otherwise proved what is required

to be proved is the fact that samples taken out of a

contraband are kept intact. This Court held as

follows:

“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
the said submission singularly weighed
with this Court to extend benefit of
acquittal only on that ground. As is clear
from the decision of this Court
in Jitendra [Jitendra v. State of M.P.,
(2004) 10 SCC 562: 2004 SCC (Cri) 2028],

24
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 Ashok [Ashok v. State of
M.P
., (2011) 5 SCC 123 : (2011) 2 SCC
(Cri) 547], 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 Jain [Vijay Jain v. State of
M.P
., (2013) 14 SCC 527 : (2014) 4 SCC
(Cri) 276] , 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
Pandey [Vijay Pandey v. State of U.P
.,
(2019) 18 SCC 215 : 2019 SCC Online SC
942] , 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.

16. 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.

25

xxx xxx xxx xxx

18. 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 the
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 kg 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.”

30. 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

26
the sample was produced. There is no argument

relating to the tampering with the seal. We further

notice that in the deposition of the investigating

officer (PW7), he has stated as follows:

“The case property is Exhibit P1,
sample is Exhibit P2, sample seal is
Exhibit P3 and the bag in which the case
property was recovered from the possession
of the accused present in the Court is
Exhibit P4.”

31. In the facts of this case, we have no hesitation

to reject the contention of the appellant.

32. Next aspect, which we consider is, whether the

conviction of the appellant made by two courts

requires interference on the ground that independent

witnesses were not associated with the investigation,

seizure and recovery. We have noticed the evidence

which is referred to by the appellant to criticize

the impugned judgment on this score. Two courts have

reposed confidence in the deposition of the

prosecution witnesses. The Investigation Officer-

PW7, when examined, has stated as follows:




                                    27
                “…At the time of apprehension of
         accused       none     from     the    public     was
         there.     There were shops but there was
         no     residential          house.     Residential

colony is at some distance. No woman
from the locality was called. Some
respectables were tried to be called.
I do not remember the names of the
said persons. Prem Singh son of Raja
Ram resident of Kahri, Sunil son of
Ram Mehar resident of Panipat, Gushan
Kumar son of Gainda Ram resident of 8
Marla Colony, Panipat were asked to do
so. It was about 2 P.M. DSP had also
arrived. The aforesaid persons
remained with us for 5/10 minutes.
They had showed their inability to
such a nature that I did not think it
proper to take legal action against
them. No shop keeper was called…”

33. In the light of this we do not think that a case

has been made for overturning the verdict of guilt

returned against the appellant.

34. In the circumstances, as noted above, though

there appears to be doubt created about whether the

28
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), we do not find merit in the argument

of the appellant.

35. Lastly, the learned Counsel for the appellant

made a fervent plea in this case that should his

contentions not be found acceptable, 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.

…………………..J.

(ASHOK BHUSHAN)

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………………….

.J.

(K.M. JOSEPH)

NEW DELHI,
MARCH 02, 2020.

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