ASHOK @ DANGRA JAISWAL v. STATE OF M.P

HELD: 1.1 There were two independent witnesses of the seizure, namely, 'A' and 'U' whose signatures were taken on the seizure memos. They were examined before the court as PWs 8 and 9 respectively. Neither of the two C supported the case of the prosecution. PW.8 was, as a matter of fact, quite emphatic in his denial of any recovery having been made from the appellant or the other accused in his presence. Both were declared hostile by the prosecution. Therefore, both the trial court and the D High Court had to rely upon the testimony of PW 10 who was the Station House Officer at the material time and who had conducted the raid to accept the prosecution case of recovery of the suspected narcotic from the accused. The seizure witnesses turning hostile may not E 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. [Paras 8 and 9) (258- F G-H; 259-A-C]

1.2 The seizure of the alleged narcotic substance is shown to have been made on March 8, 2005, at 11 :45 in the evening. The samples taken from the seized substance were sent to FSL on March 10, 2005, along G with the draft. 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 March 12, 2005 due to some mistake in the draft or with some query in respect of the draft. The samples were sent back to the H FSL on March 14, 2005, after necessary corrections in the ASHOK@ DANGRA JAISWAL v. STATE OF M.P. 255 draft and/or giving reply to the query and on that date the A samples were accepted at the FSL. From the time of the seizure in the late evening of March 8, 2005, till their deposit in the FSL on March 14, 2005, it is not clear where the samples were laid or were handled by how many people and in what ways. [Para 10] [259-D-F] B

1.3 The FSL report came on March 21, 2005, and on that basis the police submitted charge-sheet against the accused on March 31, 2005, but the alleged narcotic substance that was seized from the accused, including C the appellant was deposited in the Malkhana about two months later on May 28, 2005. There is no explanation where the seized substance was kept in the meanwhile. [Para 11] [259-G-H; A]

1.4 The alleged narcotic powder seized from the D possession of the accused, including the appellant was never produced before the trial court as a material exhibit and there is no explanation for its non-production. Thus, there is no evidence to connect the forensic report with the substance that was seized from the possession of the E appellant or the other accused. [Para 12] [260-B]

1.5 The appellant is entitled to the benefit of doubt and acquit him of the charges and set aside the judgments and orders passed by the trial court and the F High Court. [Para 15] Jitendera and Anr. v. State of M.P. (2004) 10 SCC 562 - relied on.

Though the other two accused, 'K and "G' did not G file appeal before this Court, there is no reason why the benefit of this judgment may not be extended to them as well. From the possession of "K' the recovered quantity was 100 grams and from 'G' 35 grams. All the three accused including the appellant were tried together and H 256 SUPREME COURT REPORTS [2011) 4 S.C.R. A the other two accused 'K' and 'G' have also been given the same sentence as the appellant. The lapses in the prosecution and the facts and circumstances that have been noted and that have taken into account for setting aside the conviction of the appellant apply equally to the B case of 'K' and 'G'. It 'would be unjust, therefore, to let them rot in jail even while allowing the appeal preferred by the appellant. The conviction and sentence is also set aside and they too along with the appellant are directed to be released forthwith unless anyone of them Is c required In connection with any other case. [Paras 16 and 17] [262-C-H]