MOHINDER SINGH v. THE STATE OF PUNJAB

Narcotic Drugs and Psychotropic Substances Act, 1985: s.50 – Prosecution case was that the appellant was carrying contraband substance in a bag – On search of bag in presence of DSP, the substance in bag was found to be opium of 7.04 kg – Two samples of 20 gms each were taken and sealed – Case property along with two samples deposited in Malkhana and next day produced before the Magistrate – Samples parcels sent to FSL and found to be opium – Acquittal by trial court for non-compliance of s.50 of the Act and on the ground that the order of the Magistrate did not show that the seal of sample sent to FSL tallied with the seal of the contraband and, thus evidence regarding such production of case property before the Magistrate was not trustworthy – On appeal, High Court held that recovery of contraband from a bag/attache which the accused was carrying in his hands would not amount to search of person and as such s.50 would not apply and further, the case property parcels of samples and sealed samples were duly produced before Magistrate – Based on the said finding, High Court reversed the order of acquittal and convicted appellant u/s.18 and sentenced him to undergo ten years imprisonment – On appeal, held: Oral evidence of PW-3 and PW-5 as to the deposit of the contraband seized from the accused with Malkhana is not corroborated by the documentary evidence – 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 – In an appeal against acquittal, the High Court will not interfere unless there are substantial and compelling reasons to reverse the order of acquittal – Considering the case in hand, the findings of the trial court cannot be said to be ‘distorted conclusions’ warranting interference – Based 910 MOHINDER SINGH v. THE STATE OF PUNJAB 911 on the oral evidence of PW-2 and PW-3, the High Court ought not to have interfered with the order of acquittal and the conviction of the appellant under s.18 of the Act was not sustainable. Narcotic Drugs and Psychotropic Substances Act, 1985: s.50 – Personal search – Carrying the contraband substance in the scooter/ bag cannot be said to be ‘by the person’ necessitating compliance of s.50 of the Act for personal search. Allowing the appeal, the Court HELD: 1. After referring to the oral evidence of PW-2 and PW-3, the trial court in 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. For proving the offence under the NDPS Act, it is necessary for the prosecution to establish the quantity of 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. [Paras 11-12] [915-E-F, G-H]